from a judgment of the circuit court for Oneida County No.
2017CF118: MICHAEL H. BLOOM, Judge. Affirmed.
Stark, P.J., Hruz and Seidl, JJ.
Keith Shoeder was observed operating his riding lawn mower on
the shoulder of a public roadway and was subsequently
arrested for fourth-offense operating a motor vehicle while
intoxicated (OWI). Shoeder argues the circuit court
erroneously denied his motion to dismiss that charge because
a riding lawn mower is not a "motor vehicle" within
the meaning of Wisconsin's OWI statute, Wis. Stat. §
346.63(1)(a) (2017-18). Instead, he argues his riding lawn
mower is an "all-terrain vehicle," the operation of
which while intoxicated is subject to a different penalty
scheme. We conclude the relevant statutes permit
Shoeder's prosecution for OWI because his riding lawn
mower qualifies as a "motor vehicle." We further
conclude Shoeder's riding lawn mower does not satisfy the
statutory definition of an "all-terrain vehicle."
Accordingly, we affirm his OWI conviction.
According to the criminal complaint, on the afternoon of May
9, 2017, Oneida County dispatch received an anonymous
telephone call reporting that Shoeder had an active warrant
and was present at a tavern located in the Township of Pine
Lake. Deputy Richard Brewer responded to the report and
identified Shoeder driving an orange Husqvarna riding lawn
mower southbound on the blacktop shoulder of Eagle Street, in
the nearby City of Rhinelander. Brewer, heading northbound,
passed by Shoeder and then saw him take an abrupt right turn
onto a driveway that led to some condominiums.
Brewer turned around to follow Shoeder and activated the
emergency lights on his marked squad car. Shoeder refused to
stop, and Brewer activated his siren. Shoeder then drove off
the driveway onto the front grassy area of the condominiums
and through some trees. Brewer stopped his squad car and
eventually apprehended Shoeder on foot.
Upon making contact with Shoeder, Brewer noticed a strong
odor of alcohol. Shoeder seemed "dazed and
confused," his responses to questions were
incomprehensible or evasive, his eyes were glassy, and he had
difficulty keeping his balance. Shoeder denied drinking
alcohol, and he claimed his difficulties were the result of a
brain surgery. He refused to complete his field sobriety
tests and was arrested. A subsequent blood draw showed
Shoeder's blood alcohol concentration was .119.
Shoeder was charged with fourth-offense OWI and
fourth-offense operating with a prohibited alcohol
concentration (PAC), both in violation of Wis. Stat. §
346.63(1). He filed a motion to dismiss the
charges, asserting he had not operated a
"motor vehicle" within the meaning of §
346.63(1)(a), which, as relevant here, prohibits a person
from driving or operating a motor vehicle while under the
influence of an intoxicant. Following a hearing, the circuit
court denied the motion. Shoeder then pled no contest to the
OWI charge, the PAC charge was dismissed, and he was
sentenced. He now appeals, challenging the denial of
his motion to dismiss.
The validity of Shoeder's prosecution for an OWI under
Wis. Stat. § 346.63(1)(a) turns upon whether his riding
lawn mower qualifies as a "motor vehicle" or,
alternatively, whether it qualifies as an "all-terrain
vehicle" under the relevant statutory definitions.
Statutory interpretation and the application of a statute to
a given set of facts are questions of law that we review de
novo. State v. Wiskerchen, 2019 WI 1, ¶16, 385
Wis.2d 120, 921 N.W.2d 730.
When we engage in statutory interpretation, we begin with the
language of the statute. Id., ¶20. We give
statutory language its common, ordinary and accepted meaning,
except that technical or specially defined words or phrases
are given those respective definitional meanings.
Id. Statutory language is interpreted in the context
it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely related
statutes; and reasonably, to avoid absurd or unreasonable
results. Id., ¶21.
It is illegal in Wisconsin for a person to drive or operate a
"motor vehicle" on a public roadway while he or she
is intoxicated or has a prohibited alcohol concentration.
Wis. Stat. § 346.63(1)(a), (1)(b); see also
Wis. Stat. §§ 340.01(22); 346.01(1m); 346.02(1)
(addressing the scope of Wis. Stat. ch. 346). Violations of
§ 346.63(1) are subject to an escalating penalty system
depending upon the number of a person's lifetime
convictions or other specified penalties that have been
assessed against that person. See Wis. Stat. §
346.65(2)(am). Shoeder does not dispute the illegality of a
person operating a motor vehicle while intoxicated. Rather,
Shoeder argues he could not be prosecuted under §
346.63(1)(a) because he was not operating a "motor
vehicle." Shoeder instead asserts he was operating an
Only certain portions of Wis. Stat. ch. 346 apply to
"all-terrain vehicles." See Wis. Stat.
§ 346.02(11). The prohibitions against OWI and PAC in
Wis. Stat. § 346.63(1) are not among the provisions our
legislature has chosen to apply to all-terrain vehicle
operators. Sec. 346.02(11). Such conduct while operating an
all-terrain vehicle is still illegal; it is prohibited by
Wis. Stat. § 23.33(4)(c) and is punishable under a
separate escalating penalty system, see §
23.33(13)(b). But if Shoeder is ...