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State v. Shoeder

Court of Appeals of Wisconsin, District III

October 1, 2019

State of Wisconsin, Plaintiff-Respondent,
Keith H. Shoeder, Defendant-Appellant.

          APPEAL from a judgment of the circuit court for Oneida County No. 2017CF118: MICHAEL H. BLOOM, Judge. Affirmed.

          Before Stark, P.J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 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).[1] 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.


         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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,[2] 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.[3] He now appeals, challenging the denial of his motion to dismiss.


         ¶6 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.

         ¶7 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.

         ¶8 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 "all-terrain vehicle."

         ¶9 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 ยง 23.33(13)(b). But if Shoeder is ...

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