Opinion
Case No. 99-1809-CR.
Opinion Released: January 13, 2000. Opinion Filed: January 13, 2000. This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4 (1997-98).
APPEAL from a judgment of the circuit court for Green County: JAMES R. BEER, Judge. Reversed.
Robert L. Wedig appeals from a judgment convicting him of operating a motor vehicle while intoxicated.
¶ 2. Wedig was arrested after police found him in a parked automobile, with the engine not running; and he argues that, on these facts, he could not be found to have been "operating" the vehicle in violation of the statute because, under the law, for one to "operate" a vehicle requires not only that he or she "start the motor and/or leave it running," but also that "the defendant physically manipulate or activate . . . the controls necessary to put the . . . vehicle in motion." State v. Modory , 204 Wis.2d 538, 543, 555 N.W.2d 399 (Ct.App. 1996), citing Milwaukee County v. Proegler , 95 Wis.2d 614, 628-29, 291 N.W.2d 608 (Ct.App. 1980) (citations and internal quotations omitted).
¶ 3. The State, for reasons unknown to us, has elected not to file a brief in opposition. We have often said that because a respondent's failure to file a brief is a tacit concession that the trial court erred and the appeal has merit, we usually will reverse the judgment in such circumstances. State ex rel. Blackdeer v. Township of Levis , 176 Wis.2d 252, 260, 500 N.W.2d 339 (Ct.App. 1993). And there is nothing here to suggest that this is one of those rare cases where the issue is of such great public concern that we would elect, in the exercise of our discretion, to consider it despite the lack of briefing. See Vogt v. Nelson , 69 Wis.2d 125, 127, 230 N.W.2d 123 (1975).
¶ 4. We therefore reverse the judgment based on the State's failure to file a brief countering Wedig's arguments.
By the Court. — Judgment reversed.