79 Wis. 2d 473 - State v. Collova

How this case has been cited

Cited by 99 later decisions — most recently July 2020 · most notably Karlin v. Foust (1999), 175 Wis. 2d 628 - State v. Olson (1993)

2 federal appellate · 91 state decisions — followed in 10 states

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.

CONNOR T. HANSEN, J.

¶1(concurring in part; dissenting in part). I concur with the result reached by the majority. The case should be reversed and the cause remanded. However, I respectfully dissent from and disagree with the rationale used by the majority in reaching that result. They have, in effect, added a fourth element to the otherwise clear and unambiguous language of sec. 343.44 (2), Stats.

¶2The majority correctly notes that the 1973 amendment to sec. 343.44(2), Stats., changed the method of giving notice from certified mail to first-class mail and provided that if such notice is in fact mailed to the defendant’s last known address, non-receipt or refusal to accept is not a defense. The majority states, “The statute states *490clearly that non-receipt of an order of revocation properly mailed is not a defense to a charge under the statute.”

¶3The majority nevertheless proceeds to interpret the statute so as to create an additional or fourth element and to make non-receipt of the notice a complete or at least a partial defense. The majority does so by holding that an offense under sec. 343.44(2), Stats., requires a finding of mens rea, original intent, guilty knowledge or scienter on the part of the defendant.

¶4If the state is required to prove as an element of the offense that the defendant had cause to believe his license might be revoked or suspended, under the majority decision the state could presumably do so by proving that the defendant received notification of the revocation or suspension. In this regard, notes the majority, the state could avail itself of the presumption that a letter, properly posted was received. A letter, mailed first-class to the defendant’s last known address, is accorded under sec. 343.44(2), Stats., more than a presumption of receipt, however. An irrebuttable presumption of receipt arises, because the non-receipt is no defense. It is that statutorily created irrebuttable presumption which the majority opinion negatives by this decision.

¶5The statutory language and intent are clear. Non-receipt of a properly addressed first-class mailed notice is no defense. By adding the fourth element to the offense, the majority subverts the clear intent of the statute.

¶6I am authorized to state that Mr. Justice HANLEY and Mr. Justice R. W. HANSEN join in this concurring in part; dissenting in part opinion.