On Point blog, page 2 of 4
SCOW clarifies how to calculate OWI fines subject to multiple enhancers
State v. Charles L. Neill, IV, 2020 WI 15, 2/14/20, reversing a published decision of the court of appeals; case activity (including briefs)
In this decision the supreme court explains how to calculate the minimum fine for an OWI when the fine is subject to multiple enhancer provisions. The supreme court’s calculation is better for defendants than the one arrived at by the court of appeals, though not the more favorable one advanced by Neill.
Out-of-state deferred OWI prosecution counts as prior in Wisconsin
State v. Jeffery Scott Wiganowsky, 2019AP884-CR, District 4, 10/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)
Wiganowsky was charged for OWI in Wyoming in 2015. He negotiated a deferred prosecution agreement, which he successfully completed, so the charge was dismissed. But his driving privileges were administratively suspended due to his blood-alcohol content. (¶9). That counts as a prior OWI “conviction” under §§ 340.01(9r) and 343.307(1)(d).
Felony OWI with a minor passenger is an unclassified felony
State v. James A. Culver, 2018AP799-CR, District 4, 7/25/19 (not recommended for publication); case activity (including briefs)
Back in 2008 Culver was convicted and sentenced for OWI, fifth offense, with a minor in the car, which doubles the minimum and maximum penalties, § 346.65(2)(f). Now that his extended supervision (ES) is being revoked he challenges the length of the ES term originally imposed. He argues the presence of a minor is a penalty enhancer, which lengthens the term of initial confinement but not the term of ES, see § 973.01(2)(c)1. and State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24. No, says the court of appeals, under State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 NW.2d 872, OWI with a minor passenger is an unclassified felony, so the term of ES is increased, too.
SCOW will decide how multiple enhancers apply to OWI fines
State v. Charles L. Neill, IV, petition for review granted 6/11/19; 2018AP75; case activity (including briefs)
This is a review of a published court of appeals decision. Here’s the issue, as stated in our prior post:
Neill pleaded to an OWI-3rd, which has a minimum fine of $600. Wis. Stat. § 346.65(2)(am)3. His plea came with two statutory enhancers: the one for having a BAC over .25 (Wis. Stat. § 346.65(2)(g)3.), and the one for having a child in a car (§ 346.65(2)(f)2.). The former quadruples the minimum fine, and the latter doubles it. So, what’s the minimum fine?
SCOW: Expunged conviction counts as prior under § 343.307
State v. Justin A. Braunschweig, 2018 WI 113, 12/21/18, affirming an unpublished court of appeals decision; case activity (including briefs)
Braunschweig was convicted in 2011 of causing injury by intoxicated operation of a vehicle. The conviction was expunged under § 973.015. In 2016 he was charged with operating while intoxicated and with a prohibited alcohol content, both as a second offense because of the 2011 conviction. The supreme court rejects his claim that the expunged conviction can’t be a predicate offense under § 343.307(1).
Must other states’ court orders mean what they say?
State v. Benjamin R. Tibbs, 2017AP2408-CR, District 4, 5/10/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Why, no; no, they don’t.
Court of appeals holds that expunged OWI 1st counts as prior conviction for penalty enhancer
State v. Justin A. Braunschweig, 2017AP1261-CR, 2/1/8, District 4 (1-judge opinion, ineligible for publication); petition for review granted 6/11/18, affirmed, 2018 WI 113; case activity (including briefs)
Let’s hope expunction has not worn out its welcome at SCOW because this decision could use review and possibly reversal. The State charged Braunschweig (no “er”) with OWI and PAC 2nd and submitted a certified DOT record to prove that he was convicted of an OWI 1st in 2011–a conviction that had been expunged. On appeal he argues that an expunged conviction cannot serve as a predicate for an OWI 2nd. It should be considered a status element that must be proven beyond a reasonable doubt. The court of appeals disagrees, and the upshot is that someone charged with OWI cannot claim the primary benefit conferred by §973.015–i.e. a fresh start. Is that what the Wisconsin legislature intended?
Defense wins in calculation of the 10-year period under § 346.65(2)(am)2.
State v. Bobby Lopez, 2017AP923-CR, District 2, 2/13/17 (one-judge decision; ineligible for publication); case activity (including briefs)
In order to be “within” the 10-year period under § 346.65(2)(am)2., the subsequent offense must occur before the tenth anniversary of the prior offense. Thus, Lopez’s July 9, 2016, OWI offense is not “within [the] 10-year period” that began on July 9, 2006, the date of his prior offense, and he can’t be charged with second-offense OWI.
Uncertified DOT driving record + JOC on CCAP + court of appeals opinion = proof of countable prior OWI offense
State v. Kory v. Ambroziak, 2017AP22-CR, 9/19/17, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)
Ambroziak argued that he was incorrectly sentenced for a 2nd-offense OWI because the State had failed to prove the existence of a prior OWI-related offense beyond a reasonable doubt. But the court of appeals held that the State carried its burden. Thus, the circuit court correctly sentenced Ambroziak with second-offense OWI penalties.
No IAC for implying prior OWIs; stipulation to three priors valid; no issue preclusion on number of priors
State v. Bruce T. Henningfield, 2015AP1824-CR, 3/15/17 (not recommended for publication); case activity (including briefs)
Bruce Henningfield was convicted by a jury of OWI and PAC counts, and was sentenced on the OWI as a tenth or subsequent offense. He raises three issues related to his prior convictions; the court rejects them all.