OWI Appeal - Wisconsin Court Uses Failures to Appear as Priors

In State of Wisconsin v. Devries, Slip Copy, 2011 WL 1844721 (Wis.App.), the defendant was found guilty of drunk driving and sentenced as a 5th timer based on the inclusion of Arizona and California drunk-driving matters as prior “convictions” under the Wisconsin statutes. The issue on appeal was whether the events in those states properly counted as prior convictions.
In Arizona, the documents indicated that: (1) Devries was arrested on August 31, 2005 for drunk driving; (2) Devries was directed to appear in court on the specified date; (3) Devries promised to appear in court on the specified date; (4) Devries had a lawyer for the Arizona matter; and (5) Devries defaulted on her obligation and promise to appear in court. Indeed, one of Devries's trial lawyers conceded that Devries had “violated a condition of her bond” in Arizona.
The appeals court in Wisconsin then held that the failure to appear was a conviction, and stated:
"Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by WIS. STAT. § 340.01(9r) because she did not appear in court when required. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”)"
In California the evidence evinced that: (1) Devries was arrested on December 26, 2003, for drunk driving; (2) Devries was “ordered” to appear in court on the date specified in the Notice to Appear; (3) Devries promised to appear in court on the date specified in the Notice to Appear; (4) Devries did not appear on the date specified in the Notice to Appear; (5) Devries had a lawyer for the California matter; (6) Devries pled “not guilty”; and (7) Devries did not appear for trial.
The Wisconsin appeals court then held that:
"Thus, the documents support the circuit court's conclusion that Devries had a “conviction” as that word is defined by WIS. STAT. § 340.01(9r) because she did not appear in court after she was arrested and released even though she was “ordered” to do so, and she did not appear on the date scheduled for trial. See § 340.01(9r) (defining “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”).
Devries also argued that she did not have the requisite constitutional protections in connection with the Arizona and California matters, and that, therefore, those matters could not be counted to enhance her penalties for driving drunk in Wisconsin. The Wisconsin court, in disagreeing with Devries' contention, stated as follows:

Offenses that the State seeks to use as a penalty enhancer for a current offense may be collaterally attacked if the procedures underlying those predicate offenses were constitutionally flawed. See State v. Ernst, 2005 WI 107, ¶¶ 2, 22, 25, 283 Wis.2d 300, 306–307, 317, 318, 699 N.W.2d 92, 95, 100–101 (The “defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.”). If the defendant makes a prima facie showing that the procedures in the underlying matters were constitutionally flawed, the State has the ultimate burden to show that they were not. Id., 2005 WI 107, ¶ 27, 283 Wis.2d at 320, 699 N.W.2d at 102. In trying to meet that burden, the State has a right to question the defendant about the matters encompassed by the alleged constitutional infirmities. Id ., 2005 WI 107, ¶¶ 30, 33, 283 Wis.2d at 322, 324–325, 699 N.W .2d at 103, 104. If the defendant refuses to testify, the circuit court may conclude that the State has satisfied its burden to show compliance with the constitution. Id., 2005 WI 107, ¶¶ 35–36, 283 Wis.2d at 326–327, 699 N.W.2d at 105. Although the Record does not indicate that Devries refused to testify based on her Fifth Amendment rights, she did not testify about any matters that are of issue on this appeal. While a defendant is certainly not required to testify, the lack of testimony may affect his or her ability to show that the underlying enhancement-proceedings were constitutionally infirm.

Beyond mere assertion, Devries has not pointed to anything that even indicates that any of her constitutional rights were compromised. Indeed, she actually contends in her main brief that she “never knowingly, intelligently, or voluntarily waived her right to the assistance of counsel in California or Arizona” even though both the Arizona and California documents indicate that she did have lawyers in those states in connection with the her drunk-driving arrests.FN4 Her contention that the underlying Arizona and California matters were constitutionally flawed is wholly without merit and borders on being frivolous.FN5"

The Wisconsin court finalized its opinion by making the following bold statement:
"[I]n light of her having absconded in both Arizona and California before the matters there could be tried, her contention that she was not “afford[ed]” a trial is bizarre."
Editor's Note: Under Apprendi, all matters that enhance a penalty (except prior convictions) must be proved during trial beyond a reasonable doubt. Plus, the defendant normally has the right of confrontation. How would SCOTUS treat these type of 'convictions'? Are these documents be affected by the confrontation clause?


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