On Point blog, page 1 of 4
Defense win: Post-sentencing vacatur of prior OWIs may constitute a new factor justifying sentence modification
State v. James J. Socha, 2021AP1083-CR & 2021AP2116-CR, District 1, 4/25/23 (not recommended for publication); case activity (including briefs): 2021AP1083-CR; 2021AP2116-CR
The fact that some of Socha’s prior OWI offenses have been lawfully vacated since he was sentenced may constitute a new factor justifying sentence modification, so the circuit courts erred in denying Socha’s motions for sentence modification without a hearing.
Minnesota administrative suspension counts as prior OWI
State v. Jenny E. Clark, 2022AP495-CR, District 4, 3/23/23 (one-judge decision; ineligible for publication); case activity (including briefs)
Clark’s Minnesota administrative suspension for operating with a prohibited alcohol concentration counts as a prior OWI conviction under State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213.
California “wet reckless” offense counts as prior OWI in Wisconsin
State v. Evan J. Schnoll, 2021AP1119-CR, 4/28/22; District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)
In 2020, Schnoll was charged with OWI 2nd. He challenged the validity of his prior OWI, which occurred in California, arguing that it could not be counted under Wisconsin law. The circuit court rejected his argument and counted the California conviction. The court of appeals granted Schnoll’s petition for leave to appeal but now affirms the circuit court.
SCOW makes it tougher to attack prior OWIs
State v. Teresa L. Clark, 2022 WI 21, 4/20/22, reversing the circuit court on bypass, case activity (including briefs)
A defendant may collaterally attack a prior OWI conviction if she was not represented by counsel and did not knowingly, intelligently, and voluntarily waive the right to counsel during that proceeding. Once she points to evidence of this claim, the burden shifts to State to prove a valid waiver. In a split opinion, SCOW now holds that if the transcript of the prior OWI hearing is unavailable, the burden doesn’t shift. The defendant must prove that her right to counsel was in fact violated–which is virtually impossible.
SCOW will address whether refusal of blood draw can be used to enhance OWI penalties
State v. Scott William Forrett, 2019AP1850-CR, petition for review of a published decision of the court of appeals granted 9/14/21; case activity (including links to briefs)
Issue presented
Wisconsin’s escalating OWI penalty scheme counts a person’s refusal to consent to a blood draw as a basis for enhancing the penalty for future offenses. Is that scheme unconstitutional because it penalizes a defendant’s exercise of the Fourth Amendment right to be free from an warrantless search?
SCOW to review collateral attacks on prior OWIs where the defendant was denied counsel
State v. Teresa L. Clark, 2020AP1058-CR, bypass granted 4/27/21; case activity
Issue: (adapted from State’s COA brief):
When the State uses a prior OWI conviction to enhance the charge and sentence for a subsequent OWI offense, a defendant may collaterally attack the prior conviction. If the defendant proves that her right to counsel was violated in the prior case, the conviction may not be used to enhance the charge and sentence in the new case. Does the burden shift to the State when there is no transcript available to show that the circuit court violated the defendant’s right to counsel?
Defendant forfeited competency challenge to second OWI 1st
County of Green Lake v. Lori Melchert, 2020AP473, District 2, 2/24/21 (one-judge decision; ineligible for publication); case activity (including briefs)
Melchert’s challenge to a prior OWI that was improperly treated as a first offense comes way too late under City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, and City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463.
SCOW: Inferences from incomplete records sufficient to prove prior OWI conviction
State v. Alfonso C. Loayza, 2021 WI 11, 2/11/21, reversing a per curiam decision of the court of appeals; case activity (including briefs)
The supreme court unanimously holds that the state proved by a preponderance of the evidence that Loayza was convicted of OWI in California in 1990, making his current Wisconsin offense a eighth offense.
“Lifetime” means “lifetime”….
State v. Jack Ray Zimmerman, Jr., 2020AP475, District 2, 11/4/20 (one-judge decision; ineligible for publication); case activity (including briefs)
….not “lifetime since January 1, 1989.”
SCOW to review procedure for challenging prior OWI convictions
State v. Alfonzo C. Loayza, 2018AP2066-CR, petition for review of a per curiam opinion granted 6/16/20; case activity
Issue (from the State’s petition for review):
It is well established that a DOT record is competent proof of a defendant’s prior conviction and can therefore be used to enhance the defendant’s sentence. It is also well established that a defendant may challenge the existence of a conviction listed on a DOT record. But currently, there is no accepted procedure for how a defendant should challenge the existence of a conviction listed in a DOT record and what burden he must satisfy to make a DOT record so unreliable that it no longer qualifies as competent proof of the conviction.
Do the lack of a judgment of conviction for a prior offense and other documents that “support the inference” that the conviction does not exist render a Wisconsin DOT driving record that lists the conviction so unreliable that it is no longer competent proof of the conviction?