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2004 WI App 115

State v. Thomas

Court of Appeals of Wisconsin

Decided May 18, 2004

Court of Appeals of Wisconsin · decided 2004-05-18

Key passage — most relied on by later courts

“One woman drives while intoxicated, threatening the lives of countless citizens. Under Wisconsin's drunk driving laws——the weakest in the nation——she has committed a non-criminal offense if it is her first, or only a misdemeanor unless it is her fifth (or subsequent) offense.”

quoted by 1 later decision, including State v. Leevan Roundtree

“One man beats his wife, harming her physically and emotionally and traumatizing their children who witness the assault. He may, however, only have committed battery, a misdemeanor.”

quoted by 1 later decision, including State v. Leevan Roundtree

Good law ✅— No negative treatment on recordhow we know

Decided 2004-05-18

How this case has been cited

Cited by 14 later decisions — most recently May 2024

14 state decisions

60200420102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

SCHUDSON, J.

¶1(concurring).

¶2¶ 45. Although I sign onto the majority's bottom lines, I do not join its opinion for several reasons. Many of those reasons relate to what I deem to be drafting deficiencies; I shall not belabor them. A few, however, relate to analytical aspects of the opinion, one of which I shall address.

¶3¶ 46. The majority writes, "Because the legislature, in the exercise of its police powers for the purpose of public safety and the general welfare, has determined that the nature and consequences of a felony are of a greater magnitude than that of a misdemeanor, it has provided greater penalties and sanctions for those convicted of felonies." Majority at ¶ 29. I am not at all convinced that the legislature has done so or, if it has, that its determinations are logical. A few examples are illuminating.

¶4¶ 47. One man beats his wife, harming her physically and emotionally and traumatizing their children who witness the assault. He may, however, only have committed battery, a misdemeanor punishable by less than one year in jail. Another man enters a garage to steal a shovel; he has committed a burglary, punishable by years in prison.

¶5¶ 48. One woman drives while intoxicated, threatening the lives of countless citizens. Under Wisconsin's drunk driving laws — the weakest in the nation1 — she has committed a non-criminal offense if it is her first, or *539only a misdemeanor unless it is her fifth (or subsequent) offense. Another woman, however, forges a check; she has committed a felony.

¶6¶ 49. The felony/misdemeanor statutory designations are replete with anomalies such as these. They render hierarchical structures and resource allocations — in police departments, prosecution and public defender offices, trial courts and elsewhere in the criminal justice system — that exacerbate the chronic problems of a system trying to do too much with too little. And they render assumptions, such as the majority's, that make little sense.

¶7¶ 50. Thus, strangely enough perhaps, Thomas, in this appeal, has stumbled onto a somewhat accurate sense of this anomaly. And while the anomalous felony/misdemeanor distinction does not lead to the legal conclusion he seeks, it should not lead to the majority's tacit acceptance of an old assumption that makes no sense.

¶8¶ 51. Accordingly, I respectfully concur.

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