OWI Law - Wisconsin OKs Attack on Prior Convictions to Beat Felony Charges

In State of Wisconsin v. Decorah, Slip Copy, 2011 WL 6090109 (Wis.App.), the defendant was arrested for his fifth OWI offense. Decorah collaterally attacked a prior OWI conviction, alleging that he did not validly waive his right to counsel in that prior case. In particular, Decorah contended that he did not validly waive his right to counsel in his second OWI case because he did not know the applicable range of penalties when waiving counsel. After a hearing, the circuit court agreed that Decorah did not validly waive his right to counsel in the second OWI case. He was sentenced instead as a 4th offender and then the State appealed. Referring to previous caselaw the court affirmed:

"In Ernst, the supreme court explained that, in the context of sentencing based on prior convictions, a collateral attack may be based on a defendant's having not known or understood information that should have been provided when waiving the right to counsel in the prior proceeding:

[To collaterally attack,] the defendant must make a prima facie showing that his or her constitutional right to counsel in a prior proceeding was violated.... For there to be a valid collateral attack, we require the defendant to point to facts that demonstrate that he or she “ did not know or understand the information which should have been provided ” in the previous proceeding and, thus, did not knowingly, intelligently, and voluntarily waive his or her right to counsel.

 Id., ¶ 25 (emphasis added). As pointed out in Ernst, the constitutionally required information is set out in Iowa v. Tovar, 541 U.S. 77, 81 (2004). See Ernst, 283 Wis.2d 300, ¶ 15. Tovar explains that a waiver of the Sixth Amendment right to counsel is valid “ ‘when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea.’ “ See Ernst, 283 Wis.2d 300, ¶ 15 (quoting Tovar, 541 U.S. at 81). Thus, Ernst, contrary to the State's position, teaches that not knowing or understanding the range of punishments is a basis for a collateral attack because it results in an invalid waiver of counsel."

Editor's Note: Even with a waiver of counsel, a prior conviction might be subject to attack for the reasons stated above.

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OWI Appeal - Out of State Reckless Counts as a Prior, Says Wisconsin

In State of Wisconsin v. Malsbury, Slip Copy, 2011 WL 2201190 (Wis.App.) the defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving. As stated by the Wisconsin court:
"The issue in this appeal is whether Malsbury's reckless driving conviction in Washington counts as a previous conviction for purposes of Wisconsin's OWI law. Wisconsin has an accelerated penalty structure for OWI offenses such that each successive OWI conviction results in greater penalties. WIS. STAT. § 346.65(2). When determining the penalty for OWI, Wisconsin courts count:

Convictions under the law of another jurisdiction that prohibits a person from refusing chemical testing or using a motor vehicle while intoxicated or under the influence of a controlled substance or controlled substance analog, or a combination thereof; with an excess or specified range of alcohol concentration; while under the influence of any drug to a degree that renders the person incapable of safely driving; or while having a detectable amount of a restricted controlled substance in his or her blood, as those or substantially similar terms are used in that jurisdiction's laws."

In most jurisdictions (if not all of them) penal statutes are strictly construed in favor of the accused. Under a strict reading of the Wisconsin statute, a reckless driving doesn't count. But that's not what Wisconsin said:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

Wisconsin admittedly decided that what was worst for the defendant was best for the citizens of Wisconsin:

"We hold that Malsbury's Washington reckless driving conviction counts as a prior conviction for purposes of Wisconsin's accelerated OWI penalty structure. Our decision is guided by Washington's DUI penalty structure, which counts a conviction for reckless driving as a “prior offense” when the conviction was originally charged as DUI. See WASH. REV.CODE ANN.. § 46.61.5055(14)(v) (West 2011). Malsbury's sentence has all the characteristics of an OWI-type conviction: he was ordered to undergo an alcohol assessment, attend a victim impact panel, and attend alcohol information school. Finally, for purposes of OWI sentence enhancement, Wisconsin counts “[c]onvictions under the law of another jurisdiction that prohibits a person from ... using a motor vehicle while intoxicated ... [or] with an excess or specified range of alcohol concentration.” WIS. STAT. § 343.307(1)(d).

"Our holding is consistent with the purpose of Wisconsin's OWI laws. As the Wisconsin Supreme Court stated, WIS. STAT. § 343.307(1)(d) was meant to “apply broadly to prior out-of-state conduct.” State v. Carter, 2010 WI 132, ¶ 42, 330 Wis.2d 1, 794 N.W.2d 213. We will construe the OWI laws “to facilitate the identification of drunken drivers and their removal from the highways.” State v. Neitzel, 95 Wis.2d 191, 193, 289 N.W.2d 828 (1980). Additionally, “the purpose of general repeater statutes is to increase the punishment of persons who fail to learn to respect the law after suffering the initial penalties and embarrassment of conviction.” State v. Banks, 105 Wis.2d 32, 49, 313 N.W.2d 67 (1981). Counting Malsbury's reckless driving conviction in Washington as a previous conviction furthers the goal of Wisconsin's OWI laws."

Editor's Opinion: Courts generally do not interfere with legislative decisions. In fact, where a statute is clear and unambiguous, it should be applied without resort to other extrinsic aid, or without resort to determining legislative intent. Surely the statute, if it was meant to include a DWI/DUI reduced to reckless, could have specifically included that phrase. The court failed to follow the doctrine of "inclusio unius est exclusio alterius" which means "the inclusion of one thing necessarily excludes all others not specifically mentioned."


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DWI Appela - Does a Colorado DWAI Constitute a Prior for Felony Enhancement?

In State of Texas v. Christensen, Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas), the defendant appealed his felony conviction, claiming that a Colorado DWAI did not count as a 'prior' for enhancement purposes. In Colorado, there are 2 forms of drunk driving charges - DWAI and DUI.

Colorado does not use the term “intoxicated” in its statute governing the offense of driving under the effects of alcohol or a drug. Rather, in Colorado it is a misdemeanor to drive a motor vehicle or vehicle (1) under the influence of alcohol, one or more drugs, or a combination of both alcohol and one or more drugs (DUI), (2) while impaired by alcohol, one or more drugs, or a combination of alcohol and one or more drugs (DWAI), or (3) when the person's blood or breath alcohol content (BAC) is 0.08 or more at the time of driving or within two hours after driving (DUI per se). COLO.REV.STAT. ANN., § 42–4–1301(1)(a)–(b), (2)(a) (West 2010).

DUI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Id. § 42–4–1301(1)(f).

DWAI means:
driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.
Christensen argued on appeal that the DWAI conviction may not be used for enhancement purposes because being “impaired” under the DWAI statute is something less than being “intoxicated” under the Texas Penal Code. The Texas court found that the Colorado DWAI qualified as a prior:
"The fact that Colorado recognizes different degrees of impairment through its DUI and DWAI laws does not mean a person “impaired” for purposes of the DWAI statute is not “intoxicated” for the purposes of the Texas Penal Code. See Dougherty v. Brackett, 51 B.R. 987, 989 (Bankr.D.Colo.1985) (concluding that “various degrees of intoxication” defined by Colorado's DUI and DWAI statute are “all legal intoxication” within meaning of bankruptcy code). Further, absent a BAC, the evidence sufficient to prove in Colorado that a person is impaired under the DWAI statute is almost identical to that sufficient to prove intoxication due to the loss of the normal use of physical and mental faculties in Texas. Accordingly, circumstances resulting in a conviction for DWAI in Colorado are encompassed within the statutory definition of “intoxication” in the Texas Penal Code."


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OWI Appeal - Iowa Bars Use of Prior Arrests Unless Convicted

In State of Iowa v. Figueroa, Slip Copy, 2011 WL 2090020 (Table) (Iowa App.), the defendant was charged as a 3rd time offender and pleaded guilty. A pre-sentence report revealed multiple charges and offenses for which she had been arrested but not convicted. The trial court, specifically stating that it took into account the arrests, sentenced the defendant to 5 years in jail. In vacating the sentence and remanding, the appeals court stated:

"In imposing her sentence, the district court stated that it reviewed the PSI and addendums attached and that Figueroa had been arrested twenty-two times in the past ten years. See State v. Barker, 476 N.W.2d 624, 627 (Iowa Ct.App.1991) (finding the sentencing court “considered matters which it legally should not have considered, such as the defendant's record of arrests without convictions”). Where a sentencing court makes a specific reference to unprosecuted and unproven charges it is an affirmative showing the district court considered those charges. State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Consequently, we find the district court abused its discretion by considering unprosecuted and unproven charges. Compare id. (“When considered in context with the remainder of the court's explanation for imposing sentence, the reference to ‘additional crimes' is not ‘an affirmative showing’ that the court considered unproven charges.”), with State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (“The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption that his discretion was properly exercised.”). We are required to vacate Figueroa's sentence and remand for resentencing. State v. Thomas, 520 N.W.2d 311, 314 (Iowa Ct.App.1994). We note that the district court also considered permissible factors, such as Figueroa's extensive record of convictions, probation violations, and being found in contempt. By vacating and remanding, we do not imply that permissible factors would not support the sentence imposed and make no judgment as to what the sentence should be."

Editor's notes: Most states prohibit the use of bald arrests as a factor for sentencing. Instead, these states require the prosecutor to 'prove up' the arrests with reliable evidence, before they can be used.


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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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DUI Appeal - Florida Bars Use of Prior Conviction for Impeachment

In Hayward v. State of Florida, --- So.3d ----, 2011 WL 1485608 (Fla.App. 2 Dist.) the defendant was found guilty of DUI by a jury.


When Mr. Hayward took the stand in his own defense, his counsel asked him why he refused the arresting officer's requests that he take a breath alcohol test. He testified, “I've heard from people, and I've seen breath tests go wrong. You could have three Mountain Dews and blow a 0.01. I've seen it happen before, and—.” The State objected to Mr. Hayward's reference to Mountain Dews, and the trial court struck that portion from the record but allowed the first sentence to remain. Later, the State sought to impeach Mr. Hayward's comments with evidence regarding his 1992 DUI conviction, where he allegedly did take a breath test and the results were used against him. The defense objected, arguing that Mr. Hayward's comments did not “open the door” to prior crime testimony and that the potential for undue prejudice outweighed the evidence's minimal probative value. The trial court allowed the questions over the defense's objections, so the jury heard that Mr. Hayward was previously convicted for DUI. On appeal the defendant claimed that introducing the prior was in error.

Generally, in Florida evidence of unconnected crimes is inadmissible:

[I]it is generally harmful error “to admit evidence of other or collateral crimes independent of and unconnected with the crime for which the defendant is on trial.”

An exception exists if the defense opens the door so to allow for introduction. As stated by the Florida appeals court herein:

“Opening the door” is an evidentiary concept that permits the admission of otherwise inadmissible testimony in order to qualify, explain, or limit previously admitted testimony or evidence. Overton v. State, 801 So.2d 877, 900 (Fla.2001). The normally inadmissible evidence is allowed when fairness and the search for the truth require a fuller explication of evidence that otherwise would have been incomplete and misleading. Hudson v. State, 992 So.2d 96, 110 (Fla.2008). Thus, a party “opens the door” when it elicits misleading testimony or makes a factual assertion that the opposing party has a right to correct so that the jury will not be misled. Robertson [ v. State ], 829 So.2d [901,] 913 [ (Fla.2002) ]. For example, a defendant's evidence of his good character may open the door to impeachment with evidence of the defendant's bad character. Robertson, 829 So.2d at 912."

The court of appeals court found that the defendant's remarks did not "open the door:"

"Mr. Hayward's testimony, at that point, did not “open the door” to questions regarding the details of his 1992 DUI conviction. He did not place the nature of his prior felony at issue. See, e.g., McCrae v. State, 395 So.2d 1145, 1152 (Fla.1980) (holding that prosecution was allowed to ask about details of defendant's prior conviction because defendant's testimony, without clarification through questions by the State, “could have deluded the jury into equating appellant's conviction of assault with intent to commit murder with his previous misdemeanors”); Burst v. State, 836 So.2d 1107, 1109 (Fla. 3d DCA 2003) (holding that defendant opened the door to cross-examination about the nature of two prior convictions when he volunteered, during questioning by his own counsel, that he had two prior convictions for possession and two prior convictions for grand theft but, in actuality, one of the possession convictions was for possession with intent to sell and one of the grand theft convictions was for grand theft auto). Essentially, Mr. Hayward's testimony was that he did not trust breath testing machines. The statement was not misleading or incomplete, nor was it a small part of a story that required further explanation in consideration of fairness to both sides. He only provided his subjective state of mind, his opinion or his belief of the equipment's unreliability.

The court also held that evidence may become inadmissible, even if the door is opened, where the prejudice outweighs its probative value:

"Even had Mr. Hayward's limited testimony “opened the door,” the potential for undue prejudice far exceeded the probative value of the testimony. See § 90.403, Fla. Stat. (2008) (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice”). The issue of Mr. Hayward's refusal to take a breath test was minimally relevant at best. Informing the jury that Mr. Hayward had previously been convicted of the exact crime he was on trial for was extremely prejudicial. Consequently, the trial court also abused its discretion by failing to exclude the evidence on the basis that the potential for unfair prejudice outweighed its minimal probative value."

In finding the error harmful, thus requiring a new trial, the court stated:

"The jury's verdict rested largely upon weighing the credibility of the officer and Mr. Hayward. The improperly admitted evidence of Mr. Hayward's prior DUI conviction gave the State, through the officer's testimony, an unfair advantage in that credibility contest."

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