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10/04/83 STATE WISCONSIN v. VICTOR M. BOHACHEFF

October 4, 1983

STATE OF WISCONSIN, PLAINTIFF-APPELLANT,
v.
VICTOR M. BOHACHEFF, DEFENDANT-RESPONDENT



Appeal from an order of the Circuit Court for Waukesha County: Ness Flores, Circuit Judge. On bypass from Court of Appeals.

Shirley S. Abrahamson, J.

The opinion of the court was delivered by: Abrahamson

This appeal, on bypass from the court of appeals, is from an order of the circuit court for Waukesha county, Ness Flores, Circuit Judge, dismissing with prejudice the second count of a two-count criminal complaint commencing criminal prosecution against the defendant. The complaint charged the defendant with two counts of causing great bodily harm to another human being by operating a vehicle. The first count tracks sec. 940.25(1) (a), Stats. 1981-82, charging the defendant with being under the influence of an intoxicant while operating a vehicle. The second count tracks sec. 940.25(1) (b), charging the defendant with having a blood alcohol concentration of .10 percent or more while operating a vehicle. *fn1

The defendant filed a motion in the circuit court to dismiss the complaint on the ground that charging the defendant under both subsections (a) and (b) of sec. 940.25(1), Stats. 1981-82, violates the state *fn2 and federal *fn3 constitutional protections against double jeopardy. The circuit court ruled that charging both counts violates the double jeopardy provisions of the constitutions and dismissed the second count of the complaint with prejudice. We conclude that the complaint does not violate double jeopardy protections because the statute subjects the defendant to only one conviction and one punishment. We reverse the order of the circuit court and remand the matter to circuit court for proceedings not inconsistent with this opinion.

The only facts we have are those set forth in the complaint since the proceeding has not progressed beyond the complaint stage. It is evident that the two counts in the complaint stem from a single incident. As the defendant was driving down the highway in the early morning hours of June 6, 1982, his vehicle allegedly struck and injured a police officer who was assisting at the scene of an accident. According to the complaint, the investigating deputy noted that the defendant had extremely bloodshot eyes and exuded a strong odor of intoxicants; when asked to perform field sobriety tests, the defendant was unable to recite the alphabet or perform a balance test; believing that the defendant was under the influence of an intoxicant, the deputy transported the defendant to a hospital to obtain a blood sample for testing; the blood test results showed blood alcohol concentration of 0.220 percent.

The defendant was charged under sec. 940.25(1), Stats. 1981-82, which provides that it is a Class E felony to cause great bodily harm to another human being by the operation of a vehicle, while under the influence of an intoxicant, sec. 940.25(1) (a), or while having a blood alcohol concentration of 0.10 percent or more, sec. 940.25(1) (b).

Sec. 940.25(1) (c) authorizes the prosecutor to charge a violation of either sec. 940.25(1) (a) or sec. 940.25(1) (b) or both. The legislature provided, however, that if both violations are charged, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under certain provisions in ch. 343 for revocation or suspension of a person's operating privileges. *fn4

Sec. 940.25(1), Stats. 1981-82, reads as follows:

"(1) Any person who does either of the following under par. (a) or (b) is guilty of a Class E felony:

"(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance.

"(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a blood alcohol concentration of 0.1% or more by weight of alcohol in that person's blood or 0.1 grams or more of alcohol in 210 liters of that person's breath.

"(c) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of par. (a) or (b) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both pars. (a) and (b) in the information, the crimes shall be joined under s. 971.12. If the person is found guilty of both pars. (a) and (b) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under ss. 343.30(1q) and 343.305. Paragraphs (a) and (b) each require proof of a fact for conviction which the other does not require."

Although the federal constitutional guarantee against double jeopardy has "its roots in antiquity," it is "one of the least understood . . . provisions of the Bill of Rights" and the holdings of the United States Supreme Court can "hardly be characterized as models of consistency and clarity." Whalen v. United States, 445 U.S. 684, 699-700 (1980) (Rehnquist, J. Dissenting). See also Westen and Drubel, Toward a General Theory of Double Jeopardy, 1978 The Supreme Court Review 81, 82.

The United States Supreme Court has identified three interests protected by the double jeopardy clause: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (notes omitted). See also Brown v. Ohio, 432 U.S. 161, 165 (1977); ...


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