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Van Hollen Praises Wisconsin Court of Appeals Decision Upholding Sentence Enhancement in OWI "Border Crossing" Case


MADISON — This morning, the Wisconsin Court of Appeals held that a Wisconsin driver convicted of drunken driving offenses in both Wisconsin and Michigan during a continuous driving episode could face a more serious punishment in Wisconsin.


Attorney General J.B. Van Hollen, whose office represented the State of Wisconsin in the Wisconsin Court of Appeals, praised the decision. "A drunken drive between Wisconsin and another state can lead to two separate convictions and a more serious penalty in Wisconsin," said Van Hollen. "Today's decision better protects the safety of Wisconsin citizens, especially those who live and drive in our border counties."


In February 2005, Andrew C. Holder drove drunk in Menominee, Michigan and continued over a bridge to Marinette, Wisconsin, where he was apprehended. He eventually received drunken driving convictions in both Wisconsin and Michigan for the single stint of driving.


Wisconsin law increases the severity of a defendant's penalty for drunken driving based on the number of prior convictions. Holder was charged again for drunken driving in 2009. Holder argued that only one 2005 conviction should count because both convictions arose out of the same incident or occurrence. He asked the courts to strike his Michigan conviction for purposes of sentence enhancement.


The Wisconsin Court of Appeals disagreed. Relying on earlier decisions, the court concluded that a single, continuous drunken driving event may constitute multiple incidents if the driver intentionally chooses to invade the legal interests of another state. Here, the court concluded that both Wisconsin and Michigan had separate interests in punishing drunken driving, and the Wisconsin court could count the 2005 Michigan conviction and the 2005 Wisconsin conviction in imposing the 2009 Wisconsin sentence.


From the court's decision (with a legal citation omitted):


We conclude that Holder came to a “fork in the road” when he came to the border between Michigan and Wisconsin. At that point, Holder had a decision. He could remain in Michigan and be subject only to the laws of that state, or he could continue into Wisconsin and thereby subject himself to the laws of both Michigan and Wisconsin. When Holder intentionally continued into Wisconsin, and subjected himself to its laws, he “invade[d] a different interest.”


Accordingly, we conclude that although Holder's Michigan and Wisconsin convictions stemmed from one continuous stint of driving, they arose from two separate incidents—one incident in Michigan and one incident in Wisconsin. We, therefore, conclude that Holder's second offense OWI conviction in Wisconsin and his 2005 OUIL conviction in Michigan did not arise out of the same incident or occurrence and affirm the circuit court's denial of Holder's motion to strike.


The Wisconsin Court of Appeals' decision in State of Wisconsin v. Andrew C. Holder, No. 2009AP2952-CR, appears at the court's website:


The Marinette County District Attorney's Office represented the State of Wisconsin in Marinette County Circuit Court. Assistant Attorney General Michael C. Sanders represented the State in Wisconsin Court of Appeals.