Appeals court tosses drunken-driving conviction because wrong statute charged

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Kevin Murphy/Special to The Gazette
Wednesday, May 7, 2014

MADISON--A state appeals court Wednesday tossed out Genoa City man's third drunken driving conviction because he was charged with the wrong statute.

The District II Court of Appeals concluded Shawn M. Hill was operating a utility terrain vehicle that did not fit the definition of a motor vehicle in the statute under which he was convicted.

Hill, 41, had been driving on a snowmobile trail in a six-wheel vehicle capable of operating on land or water when he crossed Clover Road in the village of Bloomfield in February 2013.

Hill was arrested for third-offense drunken driving, operating on a revoked license and failure to install an ignition interlock device.

Circuit Judge David Reddy found that because Hill's off-road vehicle was steered with toggles and not a steering wheel, it was not a utility terrain vehicle as defined by Department of Natural Resources code and so was subject to the motor vehicle statute.

The revocation and ignition violations were dismissed by agreement between the parties.

Hill pleaded no contest to the misdemeanor charge, and his 90-day jail sentence and two-year license revocation were stayed pending appeal.

On appeal, both parties said the vehicle's lack of a steering wheel supported their position.

Hill's attorney, Pat Swatek of Lake Geneva, contended that his client's vehicle was not subject to the motor vehicle code's penalties because it did not have the required steering wheel.

Walworth County Assistant District Attorney Diane Donohoo argued that the vehicle did not fit the utility terrain vehicle definition because it did not have a steering wheel.

The appeals court sided with Hill, finding that because the vehicle was registered with the state as an utility terrain vehicle the state could not say it was a different kind of vehicle.

“The state cannot apply a statutory definition one way so as to collect a registration fee and then turn around and interpret the same definition another way so as to increase the applicable penalties for a law violation,” wrote Judge Paul Reilly.

Hill will be “ecstatic” by Wednesday's opinion because Hill did not believe the conviction would be overturned, Swatek said.

“Under the motor vehicle code, this would have been his third offense, which means jail. Under the DNR code, it's only his first offense, which means a civil forfeiture,” Swatek said.

Walworth County District Attorney Daniel Necci had no comment on the opinion and said he had not decided whether to appeal the case to the Wisconsin Supreme Court or prosecute Hill under the DNR code.

Unlike all-terrain vehicles, utility terrain vehicles typically have side-by-side seating, and many have seat belts and roll-over protection.

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