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Challenging Prior Operating While Intoxicated Convictions

Challenging Prior OWI Convictions
By: Tracey A. Wood

Prior to November 1, 2000, attorneys in Wisconsin were able to collaterally attack prior operating while under the influence (OWI) convictions if there were any true defects in the plea hearings of those prior convictions. See State v. Foust, 214 Wis. 2d 568, 570 N.W.2d 905 (Ct. App. 1997); State v. Baker, 169 Wis. 2d 49, 485 N.W. 2d 237 (1992). In November of 2000, however, the Wisconsin Supreme Court changed the rules when it decided State v. Hahn, 238 Wis. 2d 889, 618 N.W. 2d 528 (2000). With the Hahn decision, Wisconsin law now tracks federal law in severely limiting challenges to old convictions.

Our Supreme Court used the United States Supreme Court case of United Stated v. Curtis, 511 U.S. 485 (1994) as its model in Hahn. United States v. Curtis essentially held that a defendant may not collaterally attack prior convictions in a current federal prosecution in a current federal prosecution unless the prior conviction involved a violation of the right to counsel.

A collateral attack of a prior conviction is not an appeal of that conviction; it is simply a mechanism for defense attorneys to use to prevent the prior conviction from enhancing the penalties the clients faces in the current case. For example, if you, the defense attorney, are representing a person charged with fifth offense OWI (a felony), and you discover the client did not have an attorney or waive counsel in his fourth offense case, he should be sentenced as a fourth offense misdemeanant, as opposed to a fifth offense felon. The conviction for fourth offense OWI will remain on his record, but it cannot be used for sentencing purposes if it is properly challenged.

In practice, the first step an attorney should take when he or she starts representing an OWI client is to get a copy of driving record. Then, the minutes, plea questionnaires and waiver of rights forms should be retrieved for all prior criminal drunk driving cases. (It was a criminal prior if the revocation of license was for one year or more on the OWI charge and if the client tells you he went to jail on a case.)

If you see the client did not have an attorney in any of the prior offenses after reviewing the minutes and other documents, order the transcript of the plea and sentencing hearing. By reviewing that transcript, you will be able to determine if the client made a valid waiver of counsel in the prior case.

If counsel determines there was not a valid waiver of counsel, the prior may be attacked in a number of ways. A motion to dismiss the criminal complaint is a criminal uncounseled OWI. More commonly, counsel may file a motion to bar consideration of the questionable prior conviction for sentencing purposes. To meet the initial defense burden, counsel should attach an affidavit from counsel referring to the transcripts or, in some cases, and affidavit from the client if counsel is sure that the statement under oath does not subject the client to further prosecution for false swearing or perjury.

Although our Supreme Court really cut off a lot of areas of attack in Hahn, it followed up with a case illustrating the stringent requirements of waivers of counsel in State v. Peters, 2001 WL 74 (June 28, 2001). In reversing the Wisconsin Court of Appeals, the Supreme Court in Peters stressed the importance of a full and proper circuit court colloquy with the defendant as a prerequisite to a finding that counsel was waived. Quoting from the case of State v. Klessig, 211 Wis. 2d 194, 201, 564 N. W. 2d 716 (1997), the Court required circuit court judges to personally address defendants for the following reasons:

[T]o ensure that the defendant:
(1) made a deliberate choice to proceed without counsel,
(2) was aware of the difficulties and disadvantaged of self-representation,
(3) was aware of the seriousness of the charge or charges against him, and
(4) was aware of the general range of penalties that could have been imposed upon him… If the circuit court fails to conduct such a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver of counsel.

Peters, supra, at 801.

The Peters court, therefore, made it very clear that waiver of counsel will not be presumes in the absence of a full colloquy between the Court and the defendant establishing a knowing and voluntary waiver of this important right. Counsel should be aware that in prior convictions where a court simply asks the defendant if he was aware he had a right to an attorney, the conviction may still be attacked because this is an invalid waiver under Peters. Circuit courts have historically concentrated on establishing that defendants are voluntarily choosing to proceed without counsel but have not addressed whether this choice has been made in a knowing fashion.

Wisconsin case law in the aftermath of Hahn is not cleat as to whether an attack on a prior conviction may be made on the basis of ineffective assistance of counsel. Federal law under Curtis would prohibit such an attack, but Wisconsin court have nit precluded this avenue of challenge, at least to date. Additionally, Peters specifically leaves open the possibility of attacks based upon Sixth Amendment and due process violations, so counsel should review prior convictions for possible violations in all of these areas. Simply put, where there is an open question of what may be permissibly attacked, counsel should make the challenge. It also important to note that Hahn was not an OWI case, therefore, leaving more room, for attacks on priors in the drunk driving context.

Counsel should also be aware that our Supreme Court in Hahn did not limit attacks on prior out-of-state convictions. Wis. Stat. §343.307 states that courts should count as prior convictions:

Convictions under the law of another jurisdiction that prohibits refusal of chemical testing or use of a motor vehicle while intoxicated or under the influence of a controlled substance analog, or a combination thereof, or with an excess or specified range of alcohol concentration, or under the influence of any drug to a degree that renders the person incapable of safely driving, as those or substantially similar terms are used in that jurisdiction’s laws.

Counsel should be challenged the use of almost every other state’s convictions for OWI. Counsel, by not stipulating to the prior conviction, will force the prosecutor to come forward with certified records of the prior conviction. Counsel may also argue that unless the prosecutor provides a copy of the exact statute in effect at the time of the client’s violation, the burden of showing the client was convicted under a statute with substantially similar terms to Wisconsin’s statute has not been met.

Challenging prior convictions is not limited to drunk driving cases. For example, a second offense possession of controlled substance case is a felony in Wisconsin. If the prior offense was uncounseled, that conviction is subject to a collateral attack. The cases of Foust, Peters, and Baker previously mentioned ate very helpful to counsel in determining whether such an attack would be beneficial to the client.

Although the Hahn decision severely limited collateral challenges to prior convictions, a surprising number of defendants do not have attorneys on misdemeanor offenses. Moreover, a surprising number of circuit courts do not elicit valid waivers of the right to counsel. Thus, getting all of the information on prior conviction may be the most useful work a defense attorney may do for his or her client.

The suggested approach for victim speakers is to convey the following:

You have not hurt me. Some person who chose to drink and drive has hurt me.
I would like you to learn from my experience.
I hope you never have to live through the nightmare which is the cruel but predictable consequence of drinking and driving.
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The concept of confronting offenders on a personal level is not new. Judges have ordered drunk driving offenders to attend victim impact panels as an alternative to incarceration or as a condition of probation in other parts of the country since 1982. Since their inception, groups like MADD (Mothers Against Drunk Driving) and RID (Remove Intoxicated Drivers) have supported and promoted the use of VIPs. In fact, such organizations are vital for locating, contacting, and screening potential victim panelists.

In Wisconsin, the legislature passed 1991 Wisconsin Act 277, which provided judges with the statutory authority to order a defendant to visit a site that demonstrates the adverse effects of substance abuse or of operating a vehicle while under the influence of an intoxicant or other drug. This site could be an alcoholism treatment facility or an emergency room. Further, the “visit” should be monitored and ordered for a specific time an day to allow the defendant to observe victims of vehicle accidents involving intoxicated drivers. If the defendants does not comply with the court order, the court may order the defendant to show cause why he or she should not be held in contempt of court(8). Thus, the statute paved the way for Wisconsin’s first court-ordered victim impact panel program.

When victims tell their stories from the heart never in a blaming or accusatory way, as part of DUI/DWI Victim’s Impact Panel, we can change people’s thinking about drinking and driving. The panel is a way of finding some degree of balance and justice in the criminal justice system. The drunk drivers and potential drunk drivers need to hear what happens to the victims of drunk driving crashes.

Tracey A. Wood is a shareholder with the Madison criminal defense firm of Van Wagner & Wood, S.C. She is a past president of the Dane County Criminal Defense Lawyers Association, serves on the Board of Directors of the Wisconsin Association of Criminal Defense Lawyers, and is a member of the National Association of Criminal Defense Lawyers. She is also an active Wisconsin member of the National DUI College and has been certified to administer standardized field sobriety tests.

Tracey is known for her expertise in defending individuals accused of drunk driving and other federal and state crimes. She is often called upon both to mentor other attorneys, as well as to speak at defense seminars. Tracey’s most famous trial win to date was in the Fort McCoy military vehicle federal theft case, which received national media coverage and even received a nod from Jay Leno on the Tonight Show.

Chris Van Wagner and Tracey Wood of Van Wagner & Wood, devote themselves exclusively to helping people accused of or convicted of a crime or a drunken driving offense. Those lawyers strive to provide people with an aggressive, successful defense, through their more than 30 years of combined legal experience, as well as their stellar reputation with judges, prosecutors, other defense lawyers and the legal community in general. To the left is a list of some of the types of cases in which we defend people. You can click on those topics for further information, or click here for a composite explanation.

If you are under investigation for a crime or drunk driving offense, if you have already been charged with a crime or drunk driving violation, or if you have already been convicted but believe your conviction or your sentence were wrong, please call (608-284-1200) or e-mail the attorneys at Van Wagner & Wood right away. They will give you a brief but professional “first-impression” analysis of your case and your situation, which will allow you to take an important first step in defending the case against you.

You may also want to read:
Felony Drunk Driving | Wisconsin Drunk Driving Law
Save Your Drivers License | Drunk Driving Arrests

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Van Wagner & Wood, S.C.
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Van Wagner & Wood's office is located at Martin Luther King, Jr. Blvd. and Doty Street. 10 East Doty is located on the outside of the first circle surrounding the capitol building. You can park under the building by entering the parking lot from Doty Street. If you park under 10 East Doty, the offices of Van Wagner & Wood will validate your parking ticket so that you do not have to pay to park. If the parking ramp is full, there are numerous parking places surrounding 10 East Doty, as well as a public parking ramp on State street.

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Van Wagner & Wood's criminal defense lawyers handle appeals to both the Appellate Court and the Supreme Court, as well as both state and Federal court systems for people convicted of a crime who believe their conviction or sentence were wrong. Most often, the appeals that they handle are to federal court because very few attorneys handle these types of appeals; Attorney Chris Van Wagner was a US Attorney in Wisconsin before entering private practice. Often times, people from across the United States hire Attorney Van Wagner for a Federal or a state appeal for serious crimes including homicide, RICO (Racketeering), felony murder, negligent homicide, vehicular homicide, or sexual assault. Attorney Tracey Wood handles appeals to Wisconsin State Court of Appeals and Wisconsin Supreme Court for charges or convictions stemming from a Wisconsin trial.

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