court of appeals rejects probation sentence for fifth-offense drunk driving; prison time required

By Gretchen Schuldt

​Convicted fifth- or sixth-offense drunk drivers must serve at least a year behind bars and cannot be placed on probation, the state Court of Appeals ruled Wednesday.

“The law does not authorize the circuit court to impose but stay the sentence and instead place the defendant on probation,” Appellate Judge Shelley A. Grogan wrote for the District II panel. The decision reversed a ruling by Waukesha County Circuit Judge and Supreme Court candidate Jennifer Dorow. 

Grogan has endorsed Dorow’s opponent in the race, Daniel Kelly, and has been publicly critical of Dorow.

In the OWI case, Grogan was joined in her opinion by Appellate Judges Lisa S. Neubauer and Maria S. Lazar.

The court returned the case to circuit court so Lynne M. Shirikian can be given more incarceration time.

Shirikian was arrested for fifth-offense drunk driving, a felony, in May 2020. A blood test showed a blood alcohol level of .299, well above legal limits, Grogan wrote.

She was released on bail with a condition of absolute sobriety, which she violated. The state charged her with felony bail jumping in a separate case.

Shirikian eventually pleaded guilty to the OWI fifth and to refusal to consent to a blood test. 

At sentencing, the prosecutor, Mary Caitlin Brejcha, argued the felony bail jumping made for a more serious case. 

“It pointed out that while out on bail on the initial charge, Shirikian was caught at a store again trying to conceal alcohol … and she had also been drinking, as evidenced by the .096 preliminary breath test performed at that time,” Grogan wrote. 

Shirikian, in response, said that she is an alcoholic who relapsed because of COVID-19.  

Defense counsel, Donna Jean Kuchler, also told the circuit court that since the bail-jumping charge, Shirikian had received treatment and had been sober for seven months,” Grogan wrote. Although refusal to take a blood test “is normally an aggravating factor,” the defense contended, “here, she was so drunk that ‘[s]he didn’t know what was going on.’ ”

Dorow, in her sentencing remarks, said the state law mandated a minimum of 18 months in prison unless she could find that a lesser sentence is in the best interest of the community and the public would not be harmed. She also was required to make a record of those findings.

“That’s a tough one for me,” Dorow said during the sentencing hearing. “How do I make a finding that confinement of less than one year and six months is in the best interest of the community, and will not harm [the] public, when you’ve had four priors? When you’ve been given the opportunity for probation in the past? Can I do that under the circumstances of this case?”

Eventually, though, she did. Dorow sentenced Shirikian to three years in prison followed by two years of extended supervision, but stayed the sentence and put Shirikian on probation for three years with nine months incarceration with work-release privileges.

Afterward, the prosecutor, relying on an analysis from the state Department of Justice, told Dorow the drunk driving law relied on another statute that required Shirikian to serve at least a year of incarceration, even with the exception to the 18-month presumptive minimum. 

The state filed a motion for resentencing, which Dorow denied, saying that resentencing would violate her double jeopardy protections. The state appealed.

The state’s reading of the OWI law is correct, Grogan wrote for the panel. The language of the statute is unambiguous, and the state’s progressively harsh OWI penalties shows that Dorow’s interpretation is unreasonable.

“It would likewise be unreasonable to interpret this statute, as the circuit court suggested, to mean that a court could sentence a fifth- or sixth-OWI defendant to as little as one day in jail, which is less than the required sentence for a second OWI offense,” Grogan wrote.

The panel ordered resentencing for Shjirikian, rejecting Dorow’s double jeopardy contention.

“Because Shirikian’s sentence was not lawful, she has no legitimate expectation of finality in it, and resentencing her does not violate double jeopardy,” Grogan said.