(dissenting). “There are public policy considerations why a committing court should have a wide choice in dealing with a convicted person in regard to his punishment and rehabilitation. The trial court should have leeway if probation is to be an effective tool of rehabilitation.”
This quotation shows the danger of not considering the context of an appellate court opinion. It is taken from Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43, 45 (1974), the case the majority relies upon for its conclusion. Had the majority relied on this quotation, rather than the statement in Prue that probation is not a sentence, it would have reached a different result. I *215would look to the issue in Prue to determine whether it supports the conclusion the majority reaches here.
As the majority notes, Prue considered whether a “person confined” to the county jail as a condition of probation was serving a sentence. However, Prue considered the interaction of sec. 53.43, Stats., which provides for “good time” credit against sentences, and sec. 973.09(1), Stats., which authorizes a trial court to place a convicted person on probation. 63 Wis. 2d at 112, 216 N.W.2d at 44. Prue did not consider the legislature’s intent when it enacted sec. 346.65(2)(c), Stats., which requires imprisonment of “not less than 30 days nor more than one year” for any person who has been convicted of drunk driving three times in a five-year period.1
It is evident from looking at sec. 346.65, Stats, as a whole, that the legislature intended recidivist drunk drivers to be punished more severely as the number of their convictions increased. A first offense drunk driving conviction carries a maximum penalty of a $300 forfeiture. A second offense carries a maximum $1,000 fine, a minimum five-day jail sentence and a maximum jail sentence of six months. Third and subsequent convictions carry a maximum of a $2,000 fine, a minimum jail sentence of thirty days, and a maximum jail sentence of one year. Because imprisonment is the most severe penalty Wisconsin law permits, the legislature’s intent is easily discernible: Those who do not stop driving while drunk after having been once convicted of that offense will be put behind bars. Courts may not avoid this legislative mandate.
*216I agree that Prue holds that a person confined to the county jail is not serving a sentence. However, the majority adds “of imprisonment” to its assertion of Prue’s holding though those words do not appear in the supreme court’s opinion. By doing so, the majority assumes its conclusion. Because Prue did not consider whether a person serving jail time was “imprisoned,” I would look further to find whether the legislature intended that a trial court could add probation to imprisonment imposed for drunk driving.
Under the trial court’s order, Meddaugh is required to spend thirty days in the Dane county jail. Had the trial court reached this result directly, by sentencing Meddaugh to thirty days in jail, the majority would affirm his sentence. Because the trial court added a two-year period of probation during which Meddaugh was required to undergo whatever alcohol treatment his probation officer required, the majority concludes that Meddaugh must be resentenced. I am not persuaded.
The supreme court requires that we not construe statutes in derogation of common sense. State v. Clausen, 105 Wis. 2d 231, 246, 313 N.W.2d 819, 826 (1982). Section 346.65(2)(e), Stats., requires that Med-daugh be imprisoned for not less than thirty days. The legislature has found that “[a] substantial number of persons who operate motor vehicles while intoxicated are in need of treatment or education or both to prevent further offenses related to the use of intoxicants.” Sec. 2051(13), ch. 20, Laws of 1981. The legislature’s intent is “[t]o promote driver improvement, through appropriate treatment or education or both, of persons who operate motor vehicles while intoxicated,” and “[t]o encourage the vigorous prosecution of persons who operate motor vehicles while intoxicated.” Id. It does not make common sense to me to interpret sec. *217346.65(2)(c) so as to prevent the treatment the legislature believes will help lessen drunk driving.
The district attorney who prosecuted Meddaugh believed that adding a term of probation to Meddaugh’s incarceration would be appropriate. Meddaugh’s probation agent explained that though Meddaugh should be imprisoned, an additional term of probation was necessary to safeguard the community. Meddaugh’s attorney explained that because treatment was not available in prison or jail, Meddaugh would again drive while drunk when he was released from even a maximum sentence for drunk driving. The court concluded that “if ever a case called for probation, it’s this one.”
State v. Duffy, 54 Wis. 2d 61, 65, 194 N.W.2d 624, 626 (1972) concluded that a trial court must impose a five-day jail sentence where the legislature had provided that a person convicted of driving after license revocation “shall be imprisoned not less than 5 days.” Sec. 343.44(2), Stats. (1969). The Duffy court did not consider whether the trial court could imprison Duffy and add a term of probation because the Duffy trial court had not attempted this. The court sentenced Duffy to five days in jail and ordered her to pay a $60 fine. The supreme court concluded that giving preference to the probation statute, sec. 973.09, Stats., over the mandatory language of sec. 343.44(2) would contravene the intent of the legislature. Id. We have interpreted Duffy as holding only that probation may not be given in lieu of the minimum sentence. State v. Schultz, 145 Wis. 2d 661, 665, 429 N.W.2d 79, 80 (Ct. App. 1988).
Here, the legislature has specified its intent — to prosecute and treat drunk drivers to prevent further episodes of drunk driving. That is exactly what occurred here. Meddaugh was imprisoned and was placed on probation with the maximum possible sentence of *218one year in jail hanging over his head if he did not conform to the treatment requirements ordered by his probation officer. The trial court’s order did not conflict with sec. 346.65(2)(c), Stats.
The majority suggests that this interpretation invades the legislature’s province. That is no more true here than in any case where a statute does not dictate a particular result. Section 346.65(2)(c), Stats., does not, standing alone, answer the question of whether jail time as a condition of probation is “imprisonment.” Although the majority focuses on what the term “imprisonment” means, that is not the issue in this case. The real issue is whether the legislature intended that recidivist drunk drivers spend time behind bars. Common sense suggests that the reason sec. 346.65(2)(e) requires time in jail for recidivist drunk drivers is to punish them and deter them and others. I doubt that punishment and deterrence is affected at all by the majority’s conclusion that being behind bars is not being imprisoned.
It seems ironic that though the legislature intended sec. 345.65(2)(c), Stats., to retreat recidivist drunk drivers more harshly, the majority has limited trial courts to imposing jail terms. One would think that jail and probation would punish and deter drunk drivers more than jail alone. I would affirm the trial court’s order.
Section 346.63(1), Stats., prohibits operation of a motor vehicle while under the influence of an intoxicant or other drug, or with a blood alcohol concentration of 0.1% or more. For ease of description, I use the term “drunk driving” for violations of that section.