79 Op. Att'y Gen. 75 (1990)

Drunk Driving; Prisons And Prisoners; Sheriffs;
A repeat OWI offender serving the mandatory term of imprisonment may be confined in a rehabilitation facility if that facility is a "locked" facility under the control and direct authority of the county sheriff and, at a minimum, that facility must satisfy all other characteristics for a jail set forth in the Wisconsin Administrative Code. OAG 13-90

April 19, 1990

79 Op. Att'y Gen. 75 (1990)

CAL W. KORNSTEDT,
Corporation Counsel

 
Dane County


79 Op. Att'y Gen. 75 (1990)

  You have requested my opinion on several issues relating to the authority of a circuit court judge to sentence a repeat offender of our intoxicated driver law (operating while intoxicated, hereinafter "OWI") to a rehabilitation facility created under section 59.07(76), Stats., in lieu of part or all of the mandatory imprisonment required by section 346.65(2)(b) and (c). Your request is apparently prompted by the desire of your county board to create a rehabilitation facility, coupled with its concern that such a facility might not be available for the sentencing of repeat OWI offenders. Paraphrasing your questions, you ask:

79 Op. Att'y Gen. 75 (1990)

1. Can a repeat OWI offender be sentenced to a rehabilitation facility created under section 59.07(76) in satisfaction of the mandatory imprisonment required by section 346.65(2)(b) and (c)?

79 Op. Att'y Gen. 75 (1990)

2. If a repeat OWI offender can be sentenced to a rehabilitation facility, must such a rehabilitation facility be a "locked" facility in the sense that inmates would be prevented from leaving the facility by virtue of physical barriers and locks on all of the doors?

79 Op. Att'y Gen. 75 (1990)

3. If a repeat OWI offender can be sentenced to a rehabilitation facility, must such a rehabilitation facility be under the control and direct authority of the county sheriff or a superintendent appointed for the rehabilitation facility?

79 Op. Att'y Gen. 75 (1990)

4. If a repeat OWI offender can be sentenced to a rehabilitation facility, and if such a rehabilitation facility must be under the control and direct authority of the county sheriff or a superintendent appointed for the rehabilitation facility, may the rehabilitation facility be "staffed" or run on a day-to-day basis by "counselors" or other non-law enforcement personnel with the county sheriff, the superintendent, or their designee "on call" and available for immediate contact should any need arise?

79 Op. Att'y Gen. 75, 76 (1990)

  In my opinion, the present statutes require a repeat OWI offender to be imprisoned in an institution which "confines" that individual. The requisites of the confinement are required whether an institution is called a jail or a rehabilitation facility. Because the term rehabilitation facility is statutorily undefined, but appears to have been equated with the term jail within certain statutes, I believe a trial court may sentence a repeat OWI offender to a rehabilitation facility. However, your three remaining questions suggest that the rehabilitation facility envisioned for use by your county board would not adequately "confine" repeat OWI offenders. Consequently, in my opinion, the answers to those three remaining questions are of utmost significance. Those answers establish the minimum characteristics of the "confinement" required for repeat OWI offenders.¯
1


79 Op. Att'y Gen. 75, 76 (1990)

  Before addressing your particular questions, I find it useful to consider both the statutory scheme within which "confinement" is required, as well as certain judicial decisions defining the parameters of such confinement, for repeat OWI offenders.

79 Op. Att'y Gen. 75, 77 (1990)

  Section 346.65(2)(b) and (c) sets forth the penalties for repeat OWI violations:

79 Op. Att'y Gen. 75, 77 (1990)

  (b)   Shall be fined . . . and imprisoned not less than 5 days nor more than 6 months . . . where the offense involved the use of a vehicle, equals 2 in a 5-year period....

79 Op. Att'y Gen. 75, 77 (1990)

  (c)   Shall be fined . . . and imprisoned for not less than 30 days nor more than one year in the county jail . . . where the offense involved the use of a vehicle, equals 3 or more in a 5- year period....

79 Op. Att'y Gen. 75, 77 (1990)

  Both of the preceding statutory subsections clearly require that the offender "shall be imprisoned" for specified periods of time.

79 Op. Att'y Gen. 75, 77 (1990)

  The unique nature of this mandatory "imprisonment" provision has long been noted.
See
State v. Duffy
, 54 Wis. 2d 61, 65, 194 N.W.2d 624 (1972);
accord
State v. Meddaugh
, 148 Wis. 2d 204, 208, 435 N.W.2d 269 (Ct. App. 1988);
State v. McKenzie
, 139 Wis. 2d 171, 176-77, 407 N.W.2d 274 (Ct. App. 1987). In
Duffy
, the defendant objected to the imposition of a mandatory jail sentence upon his conviction for driving after revocation or suspension. His first claim was that the penalty provisions of section 343.44, although cast in terms of "shall be imprisoned," still allowed for a stay of sentence and imposition of probation. The Wisconsin Supreme Court held that while most penal statutes in Wisconsin allow for a sentencing judge to impose and stay sentence in favor of probation, section 343.44, with its unambiguous mandatory language, did not give a trial judge this alternative:

79 Op. Att'y Gen. 75, 77 (1990)

Most of the penal statutes of this state grant the trial court discretion to either impose a sentence of imprisonment within prescribed statutory limitations or to impose a period of probation pursuant to the provisions of sec. 973.09, Stats. This authority is generally indicated by the language "may be imprisoned," which precedes the limitation on the period of imprisonment in the particular provision. The legislature has enacted but few statutory provisions comparable to the one in the instant case, which expressly provide that a person convicted thereunder "shall be imprisoned." If probation were to be available in either case, the legislature would have no purpose in employing the word "may" in some cases and the word "shall" in others.