“One Case, One Conviction … Eventually” – State v. McAdory and the Reinstatement Power under Wis. Stat. § 346.63(1)(c)

Introduction

State v. Carl Lee McAdory, 2025 WI 30, presented the Supreme Court of Wisconsin with an unusual procedural puzzle that can arise when a defendant is convicted of more than one of the “impaired–driving trio” — Operating While Intoxicated (OWI), Operating with a Detectable Restricted Controlled Substance (RCS) or Prohibited Alcohol Concentration (PAC) — arising out of a single incident. Because the statute, Wis. Stat. § 346.63(1)(c), mandates “a single conviction for purposes of sentencing” but is silent on housekeeping steps, trial courts have for decades followed an unwritten practice: secure guilty verdicts on all counts, discard (dismiss) the extras, and sentence on just one. McAdory’s OWI conviction was later reversed on unrelated grounds, leaving the dismissed RCS verdict in limbo. Could the circuit court simply resurrect that RCS verdict and sentence on it instead of retrying the OWI?

In a decision that splits sharply along interpretive lines, the Court (5–2) answered “yes,” holding that § 346.63(1)(c) carries an implicit authority to reinstate a previously dismissed companion verdict when the surviving conviction is vacated on appeal. The majority relied on statutory purpose and structural logic; a concurrence agreed with the bottom line but only after urging that two earlier cases (Bohacheff and Bastian) be overruled outright. The ruling clarifies sentencing practice for impaired-driving cases and sets a new procedural precedent for Wisconsin trial courts.

Summary of the Judgment

Holding – Circuit courts may reinstate a dismissed OWI/RCS/PAC guilty verdict after a companion conviction from the same incident is reversed on appeal; this does not violate § 346.63(1)(c), the mandate rule, forfeiture doctrine or the Double Jeopardy Clauses.
Vote – 5-2. Justice Dallet authored the majority (joined by Karofsky, A.W. Bradley, Hagedorn, Protasiewicz). Justice Ziegler filed a concurrence, joined by R.G. Bradley: same result, different statutory reading; they would have overruled the older precedents.
Key Statute – Wis. Stat. § 346.63(1)(c): allows charging any combination of OWI, RCS, and PAC from the same incident and requires “a single conviction for purposes of sentencing …”.
Outcome for McAdory – His OWI conviction remains vacated; the RCS verdict is reinstated and he is sentenced on that count with full sentence credit for time already served.

Analysis

A. Precedents Cited & Their Role

Town of Menasha v. Bastian, 178 Wis. 2d 191 (Ct. App. 1993) – Announced the informal “dismiss-extra-counts” practice. Majority leaves Bastian intact but uses it to show courts have historically dismissed extra counts; the new question is what happens on remand.
State v. Bohacheff, 114 Wis. 2d 402 (1983) – Addressed analogous language in an injury-by-intoxicated-use statute and read it to require only one conviction for “all purposes.” The majority sidesteps whether Bohacheff is still good law; the concurrence calls it “indefensible” and urges overruling.
State v. McAdory I, 2021 WI App 89 – Reversed the OWI conviction and remanded “for a new trial.” Majority holds that mandate did not bar alternative disposition on remand.
Double-Jeopardy Framework – North Carolina v. Pearce, Wilson, Brown v. Ohio, and Wisconsin cases Killian, Detco. Used to reject claims of successive prosecution or multiple punishment.

B. The Court’s Legal Reasoning

Statutory Silence ≠ Prohibition.
Section 346.63(1)(c) is mute on two procedural moments: how to collapse multiple guilty verdicts into “a single conviction,” and what to do if that single conviction evaporates on appeal. The majority reads the silence as leaving room for sensible implementation; reinstating an already-valid verdict is sensible because it preserves the legislature’s objective that impaired drivers not escape conviction entirely.
Implied Authority.
The ability to dismiss a duplicate verdict (recognized in Bastian) necessarily implies the reciprocal ability to revive it when needed to maintain the “single conviction” scheme. Without that power, § 346.63(1)(c) would be distorted into a “no-conviction” statute whenever an appeal succeeds on the surviving count.
No Forfeiture.
The State was not obligated to file a cross-appeal from its own voluntary dismissal, nor to flag hypothetical reinstatement in prior briefing. Cross-appeal rights under § 974.05 attach only to judgments “adverse to the state,” which this dismissal was not.
Mandate Doctrine.
Although McAdory I spoke of a “new trial,” its mandate line simply reversed and remanded. The Court of Appeals later clarified that its order did not foreclose alternate motions; the circuit court therefore acted within competency.
Double Jeopardy.
Reinstatement was not a “second prosecution” — the jury had already convicted. Nor was McAdory punished twice; he received continuous sentence credit. The possibility (later withdrawn) of retrying the OWI count posed no jeopardy problem because a defendant may be retried on a count he successfully appealed.

C. Impact of the Decision

Practical Procedure – Trial courts now have clear authority to reinstate a “back-up” verdict rather than conduct a full retrial, saving resources and respecting victims’ interests.
Charging Strategy – Prosecutors can confidently file multiple § 346.63(1) counts knowing an unused verdict can be re-activated if needed.
Appellate Litigation – Defense counsel must anticipate that winning reversal of one count will not necessarily collapse the case; potential collateral counts remain lurking.
Statutory Interpretation Method – Majority reinforces a purposive, “avoid absurdity” approach to statutory silence; concurrence signals a textualist willingness to overrule precedents that add gloss. The debate foreshadows future interpretive divisions on the Court.
Future Reconsideration – The concurrence’s invitation to overrule Bohacheff and Bastian leaves the door ajar for litigants to challenge the long-standing dismiss-extra-counts rule itself.

Complex Concepts Simplified

Single-Conviction Clause (§ 346.63(1)(c)): Think of three overlapping offenses (OWI, RCS, PAC) as three doors into the same penalty box. The legislature wants only one “official” entry marked in sentencing records, but prosecutors may try every door. If the chosen door later gets locked (reversed), the statute now permits the court to re-open another door already passed through by the jury.
Mandate vs. Opinion Language: An appellate mandate is the formal command; narrative language (“remanded for a new trial”) can yield to pragmatic motions unless the mandate expressly forbids them.
Forfeiture (vs. Waiver): Forfeiture is losing a right by inaction; waiver is the intentional surrender of a known right. The Court found the State neither.
Double Jeopardy Protections: They bar: (1) retrial after acquittal, (2) retrial after conviction, and (3) multiple punishments for the same offense. Re-entering an existing guilty verdict implicates none of these.

Conclusion

State v. McAdory plugs a doctrinal gap exposed when the fragile “single-conviction” mechanism collides with appellate reversal. By authorizing reinstatement of dormant verdicts, the Wisconsin Supreme Court ensured that statutory purpose — swift and certain sanction for impaired driving — is not defeated by procedural happenstance. The decision harmonises § 346.63(1)(c) with modern appellate realities, delineates forfeiture and mandate rules, and supplies fresh guidance on double-jeopardy boundaries. Whether the Court will revisit the underlying “dismiss-extra-counts” practice in a future case (as the concurrence urges) remains an open and consequential question, but for now trial judges and practitioners have a definitive playbook: if the surviving OWI/RCS/PAC conviction falls, revive the back-up; don’t reboot the whole game.