State v. Keith H. Shoeder

2019 WI App 60

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP997-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH H. SHOEDER,

DEFENDANT-APPELLANT.

Opinion Filed: October 1, 2019
Submitted on Briefs: February 19, 2019
Oral Argument:

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
brief of Gary S. Cirilli of Cirilli Law Offices, S.C., Rhinelander.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Brad D. Schimel, attorney general, and Kara L. Mele, assistant
attorney general.
2019 WI App 60

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 1, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP997-CR Cir. Ct. No. 2017CF118

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH H. SHOEDER,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Oneida County:
MICHAEL H. BLOOM, Judge. Affirmed.

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

¶1 HRUZ, J. 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
No. 2018AP997-CR

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.

BACKGROUND

¶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

1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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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.

DISCUSSION

2
Because the State filed the PAC charge after Shoeder had filed his motion to dismiss,
Shoeder’s motion discussed only the validity of the OWI charge. His arguments, however,
applied equally to the PAC charge, which also required proof that Shoeder drove or operated a
motor vehicle. See WIS. STAT. § 346.63(1)(b).
3
Shoeder’s sentence was stayed pending appeal.

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No. 2018AP997-CR

¶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.”

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No. 2018AP997-CR

¶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
§ 23.33(13)(b). But if Shoeder is correct and his riding lawn mower qualifies as
an all-terrain vehicle, he could not be prosecuted for OWI in violation of
§ 346.63(1)(a).

¶10 We begin with the statutory definitions relevant to this appeal.4
First, WIS. STAT. § 346.63(1) uses the term “motor vehicle.” A “motor vehicle”
means any vehicle “which is self-propelled, except a vehicle operated exclusively
on a rail.” WIS. STAT. § 340.01(35). A “vehicle,” in turn, is broadly defined to
include “every device in, upon, or by which any person or property is or may be
transported or drawn upon a highway, except railroad trains.” Sec. 340.01(74);
see also State v. Smits, 2001 WI App 45, ¶12, 241 Wis. 2d 374, 626 N.W.2d 42
(“An analysis of the statutes reveals that motor vehicle is a more restrictive term
than vehicle.”). An “all-terrain vehicle” does not qualify as either a “motor
vehicle” or a “vehicle,” except for those purposes made specifically applicable by
statute. See § 340.01(35), (74).

¶11 Shoeder admits that his riding lawn mower qualifies as a “motor
vehicle” under the relevant statutory definitions. His riding lawn motor is a

4
The relevant definitions are found in WIS. STAT. § 340.01. They specifically apply to
WIS. STAT. § 23.33 and to WIS. STAT. ch. 346.

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No. 2018AP997-CR

“vehicle” because, as his own conduct in this case demonstrates, it is a device
upon which a person may be transported on a highway. See WIS. STAT.
§ 340.01(74). The lawn mower is a “motor vehicle” under § 340.01(35) because it
is undisputed the mower is self-propelled. According to a product description of
Shoeder’s lawn mower model that the State submitted to the circuit court, the
mower has a two-cylinder gasoline-powered engine with a hydrostatic
transmission.

¶12 Shoeder argues this case turns upon the statutory definition of an
“all-terrain vehicle,” which he contends more accurately describes his riding lawn
mower. Under WIS. STAT. § 340.01(2g), an “all-terrain vehicle” is a
“commercially designed and manufactured motor-driven device” with each of the
following four attributes: (1) a weight, without fluids, of 900 pounds or less; (2) a
width of 50 inches or less; (3) equipped with a seat designed to be straddled by the
operator; and (4) travels on three or more low-pressure or nonpneumatic tires. See
also WIS. STAT. § 23.33(1)(b) (making the § 340.01(2g) definition applicable to
that statute).

¶13 The riding lawn mower specifications the State submitted clearly
show Shoeder’s model as having “step through” seating that “[e]nsures
comfortable and easy mounting and dismounting.” Shoeder acknowledges that his
lawn mower does not satisfy the requirement of having a straddle seat found in
WIS. STAT. § 340.01(2g). Instead, his argument appears to be that we should
disregard or somehow modify the straddle seat requirement in recognition of
current all-terrain vehicle manufacturing practices. Shoeder argues that because

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No. 2018AP997-CR

certain manufacturers, like John Deere and Bombardier, now market all-terrain
vehicle models with step through seating,5 we should not view the type of seating
as dispositive of whether a vehicle that otherwise satisfies the “all-terrain vehicle”
definition qualifies as such a vehicle.

¶14 Elsewhere in his brief-in-chief,6 Shoeder appears to make arguments
regarding the purpose of the relevant statutory scheme vis-à-vis affected vehicles
in encouraging us to dispense with the straddle seating requirement. He observes
that there are some similarities between an all-terrain vehicle and a riding lawn
mower, and, therefore, he asserts we should not treat a singular facet of a vehicle’s
design as being dispositive. Moreover, Shoeder argues the legislature never
“would have envisioned a riding lawn mower, designed to be operated for the
single purpose of cutting grass[,] to be considered a motor vehicle for the
transportation of individuals on a public roadway.” To support this assertion, he
notes that a riding lawn mower does not have a certificate of title and need not be
registered, unlike a car or truck.7

¶15 Shoeder’s arguments ultimately fail for a simple reason. Our task as
a court is not to rewrite or discard statutory language to keep pace with claimed

5
The State disputes Shoeder’s assertion that these new models do not use “straddle
seating,” at least based on the two pictures Shoeder submitted as representatives of such models.
6
We note that Shoeder did not file a reply brief in this appeal.
7
All-terrain vehicles must be registered, see WIS. STAT. § 23.33(2)(a), but they do not
appear to be subject to the same titling requirements as motor vehicles, compare WIS. STAT.
§ 342.05(3) with § 23.33(2), and the operator generally must hold a safety certificate in lieu of a
license, see § 23.33(5)(b). Shoeder’s contention that his riding lawn mower need not be
registered (as it relates to his statutory purpose argument) is therefore somewhat at odds with his
assertion that his lawn mower qualifies as an all-terrain vehicle.

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No. 2018AP997-CR

commercial developments. Even when we are specifically mandated to give a
statute a liberal construction (which is not the case here), we “cannot change the
wording of a statute … to mean something that the legislature did not intend, or
that the plain language of the statute will not support.” Progressive N. Ins. Co. v.
Romanshek, 2005 WI 67, ¶64, 281 Wis. 2d 300, 697 N.W.2d 417 (quoting Hayne
v. Progressive N. Ins. Co., 115 Wis. 2d 68, 85 n.11, 339 N.W.2d 588 (1983)).
“The role of a court in Wisconsin is to determine the meaning of a statute as it is
written.” State v. Chagnon, 2015 WI App 66, ¶11, 364 Wis. 2d 719, 870 N.W.2d
27.

¶16 Regardless of whether commercial manufacturers have changed their
designs and now market all-terrain vehicles with step through seating, we must
defer to our legislature’s choice to define an “all-terrain vehicle” as having
straddle seating, among other attributes. There is no inherent absurdity or
unreasonableness in it having done so. We must give effect to the language of the
statute, and if the meaning of that language is plain (as it is here), our inquiry
ordinarily ends. See League of Women Voters of Wis. v. Evers, 2019 WI 75, ¶19,
387 Wis. 2d 511, 929 N.W.2d 209. And when a statute contains a number of
requirements that must be satisfied, those requirements must be given effect. See
County of Dane v. LIRC, 2009 WI 9, ¶35, 315 Wis. 2d 293, 759 N.W.2d 571.
Simply ignoring one of the requirements would render that language mere
surplusage, which is a construction we generally avoid in the exercise of our
interpretive function. Id.

¶17 We also reject Shoeder’s various entreaties to what, in his view, is
the statute’s purpose. Ultimately, there is no support for Shoeder’s assertion that
the legislature could not (and would not) have envisioned a riding lawn mower as
falling within the definition of a “motor vehicle.” To the contrary, that our

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legislature defined that term broadly suggests it did intend to bring a wide variety
of vehicles within the purview of WIS. STAT. § 346.63(1), regardless of their
“traditional” functions or usage. While Shoeder is correct that his riding lawn
mower need not be titled or registered and was designed for cutting grass and not
for highway use, he does not dispute that the mower satisfied the statutory
definition of a “motor vehicle,” was capable of road travel, and was actually used
in this instance to traverse a roadway. And when Shoeder used the riding mower
in the capacity he did—i.e., to travel from a tavern on a public roadway—and
while he was intoxicated, it seems far from absurd to conclude the legislature
would want such a dangerous use prohibited.

¶18 The definition of an “all-terrain vehicle,” in contrast, is quite narrow.
Shoeder’s riding lawn mower undisputedly does not satisfy that definition, even if
it does bear some similarities to what the legislature considers to be an “all-terrain
vehicle.” Contrary to what Shoeder argues, there is no absurdity in treating his
riding lawn mower as a “motor vehicle” where, by his own concession, it does not
meet the definition of an “all-terrain vehicle.”8

¶19 Shoeder also relies on the unpublished, authored decision in State v.
Hill, No. 2013AP2549, unpublished slip op. (WI App May 7, 2014). 9 Hill was

8
Shoeder’s argument is, essentially, that a riding lawn mower and an all-terrain vehicle
are so similar that they should be treated in the same fashion for purposes of the OWI/PAC laws.
This is an argument that, if anything, is best directed to our legislature. It is not this court’s
function to usurp the role of the legislature. See Wagner Mobil, Inc. v. City of Madison, 190
Wis. 2d 585, 594, 527 N.W.2d 301 (1995).
9
Unpublished cases authored by a member of a three-judge panel or by a single judge
and issued on or after July 1, 2009, may be cited for their persuasive value. See WIS. STAT. RULE
809.23(3)(b).

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No. 2018AP997-CR

arrested while operating a utility terrain vehicle and charged with OWI in violation
of WIS. STAT. § 346.63(1). Id., ¶2. He argued that he could not be so charged,
and the State countered that because Hill’s vehicle used steering levers instead of a
“steering wheel,” his vehicle did not satisfy the statutory definition of a utility
terrain vehicle. Id., ¶¶3, 6. This court rejected the State’s argument, concluding
that “[b]y registering Hill’s vehicle as a UTV, the State placed Hill on notice that
he was bound to the laws applicable to UTVs.” Id., ¶9. The court concluded that
under these circumstances, the type of steering mechanism should not be
considered dispositive of whether Hill’s vehicle qualified as a utility terrain
vehicle.

¶20 Assuming Hill was correctly decided, its reasoning is not applicable
to Shoeder’s case. All-terrain vehicles and utility terrain vehicles are subject to
the same registration requirement. See WIS. STAT. § 23.33(2)(a). There is no
evidence Shoeder registered (or even attempted to register) his riding lawn mower
as an all-terrain vehicle. As a result, Shoeder was never put on notice by the State
that his riding lawn mower would be treated as an all-terrain vehicle, and there is
no injustice in declining to apply the laws applicable to such vehicles to him.

¶21 In statutory interpretation, we “assume that the legislature’s intent is
expressed in the statutory language …. It is the enacted law, not the unenacted
intent, that is binding on the public.” State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. Shoeder’s riding lawn
mower is not an “all-terrain vehicle” under WIS. STAT. § 340.01(2g). It is,
however, a “motor vehicle” under § 340.01(35), and he therefore was validly
prosecuted for OWI in violation of WIS. STAT. § 346.63(1)(a) under the facts of
this case. The circuit court thus properly denied Shoeder’s motion to dismiss the
criminal complaint.

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No. 2018AP997-CR

By the Court.—Judgment affirmed.

11