ROBERT W. WARREN, Attorney General

JEROME P. TLUSTY, Assistant District Attorney, Marathon County

You have asked whether a court, upon convicting a person for drunk driving, may stay the revocation of the person's chauffeur's license and place him on probation to the court so that he may be counseled by a county probation officer under a federally funded project called Alcohol Safety Action Program. The answer is no.

Section 972.13 (2), Stats., reads:

"(2) Except in cases where ch. 975 is applicable, upon a judgment of conviction the court shall either impose or withhold sentence and, if the defendant is not fined or imprisoned, he shall be placed on probation as provided in s. 973.09. The court may adjourn the case from time to time for the purpose of pronouncing sentence."

This statute requires the court upon conviction to impose or withhold sentence. If the defendant is not fined or imprisoned, he must be placed on probation as provided in sec. 973.09, Stats. Drunk driving is punishable by fine or imprisonment, or both, under sec. 346.65 (2), Stats. Revocation of the driver's license is no part of this sentence. Even if it were, the court has no inherent power to stay the execution of a sentence except in very limited circumstances not here involved. Drewniak v. State ex rel. Jacquest (1942), 239 Wis. 475, 484. The court can grant probation only as authorized by sec. 973.09 (1), Stats., which reads:

"(1) When a person is convicted of a crime, the court may, by order, withhold sentence or impose sentence and stay its execution, and in either case place him on probation to the department for a stated period, stating in the order the reasons therefor, and may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously."

Under this statute the defendant must be first convicted. Then the court may place him on probation to the Department of Health and Social Services. There is no authority for the court to place a person on probation to the court or to any other person or agency except the said department.

Similarly, there is no authority for a court to withhold judgment in a criminal case. Section 972.13 (1), Stats., reads:

"(1) A judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest."

Under this statute the court must enter judgment of conviction where the defendant is found guilty or pleads guilty. The court cannot withhold judgment on condition that the person accept counseling for his drinking problem, or place him on probation. The only exception to this requirement is found in sec. 161.30 (12) (i), Stats., relating to marijuana.

Under sec. 345.16, Stats., the court is authorized to send a convicted person to traffic safety school in lieu of other penalties. This could provide the opportunity for counseling the alcoholic driver. We have recently written an opinion on this subject, and a copy is enclosed.

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