On Point blog, page 4 of 4
Counting out-of-state “zero tolerance” OWI violations as prior offenses doesn’t violate Equal Protection Clause
State v. Daniel M. Hirsch, 2014 WI App 39; case activity
The equal protection clause isn’t violated by § 343.307(1)(d)‘s differing treatment of Wisconsin and out-of-state” zero tolerance” OWI offenses (which penalize drivers under the legal drinking age who drive with any alcohol concentration).
Hirsch had two prior driver’s license suspensions for violation Illinois’s zero tolerance law. Under § 343.307(1)(d),
Use of counsel in prior cases defeats defendant’s claim that he didn’t knowingly waive his right to counsel in later case
State v. Scott J. Stelzer, 2013AP1555-CR, District 2, 12/27/13 (1-judge decision; ineligible for publication), case activity
After being convicted of his 3rd OWI offense, Stelzer moved to exclude his 2nd OWI (which occurred in 1996) from the calculation of his prior convictions on the grounds that he was not represented by counsel when he pled guilty to it. Nor did he knowingly, intelligently and voluntarily waived his right to counsel at that time.
OWI — collateral attack on prior conviction; awareness of minimum penalty
State v. Jaime M. Salomon, 2013AP577-CR, District 2, 8/21/13; court of appeals decision (1-judge; ineligible for publication); case activity
Salomon collaterally attacked his second OWI conviction under State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, arguing his waiver of counsel in the case was invalid because he was not aware of the minimum mandatory penalty for the offense. The transcript of the plea hearing in the prior case shows Salomon admitted to having read the complaint,
OWI — conviction for “first” offense must be vacated where defendant has prior OWIs despite delay in moving to vacate conviction and even though priors were from another state
Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity
Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.
The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion,
OWI – reopening case improperly treated as a first offense
State v. James A. Krahn, 2012AP1898-CR, District 2, 1/30/13; court of appeals decision (1-judge, ineligible for publication); case activity
Motion to dismiss second-offense OWI charge was properly denied, where the charge resulted from the state’s successful motion to reopen a conviction for a first offense that had been entered a few weeks after a conviction in another case that was also treated as a first offense:
¶6 Wisconsin trial courts have no subject-matter jurisdiction over second or subsequent drunk driving offenses tried as first offenses contrary to Wis.
OWI – collateral attack on prior uncounseled conviction; prima facie showing
State v. Scott B. Bohlinger, 2013 WI App 39; case activity
Bohlinger made a prima facie showing that two prior OWI convictions were invalid because he did not knowingly and intelligently waive the right to counsel due to his limited cognitive capabilities. The circuit court concluded he had not made such a showing because he did not allege any deficiency in the colloquies addressing the waiver of counsel in the earlier cases.
Warrantless entry based on “community caretaker” exception; OWI — collateral attack on prior conviction
State v. Juan G. Gracia, 2013 WI 15; affirming unpublished court of appeals decision; case activity
Warrantless Entry – “community caretaker” exception
Entry into Gracia’s bedroom by police, who had linked him to a serious traffic accident, was justified by the community caretaker doctrine because the police had an objectively reasonable basis to believe Gracia needed assistance, distinguishing State v.
Use of 1st OWI offense to enhance penalty; collateral attack on prior OWI
State v. Verhagen, State v. Nickles, State v. Van Asten, and State v. Bell, 2013 WI App 16; consolidated court of appeals decision; case activity: Verhagen; Nickles; Van Asten; and Bell
OWI – Use of first offense to enhance penalty
In a prosecution for a second or subsequent OWI offense, New Jersey v. Apprendi,
OWI – successful collateral attack on prior uncounseled conviction upheld on state’s appeal
State v. Joseph L. Hernandez, 2012AP2148-CR, District 2, 2/27/13; court of appeals decision (1-judge, ineligible for publication); case activity
The trial court properly found that Hernandez made a prima facie showing that a prior OWI conviction was invalid despite his poor recollection of details of the prior proceeding, distinguishing State v. Hammill, 2006 WI App 128, ¶11, 293 Wis. 654, 718 N.W.2d 747 (“a defendant who ‘simply does not remember what occurred at his plea hearing’ does not make a prima facie showing”):
¶10 Although this case somewhat resembles Hammill in that it involves a defendant’s less than perfect memory of the earlier proceedings and a sparse record,
Enhancers — Multiple Enhancers — §§ 346.65(2), 939.62
State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta
Issue/Holding:
¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney’s penalty twice for count one of his judgment of conviction.