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?

Sec. 973.015(1m)(a)1 provides that if a person satisfies certain statutory criteria then the sentencing court may order “that the record be expunged upon the successful completion of the sentence . . .” According to the court of appeals, this means that the court record of conviction must be “destroyed”; it does not mean that the conviction is “vacated.” Opinion ¶¶ 18-19 (citing State v. Allen, 2017 WI 7, 373 Wis. 2d 98, 890 N.W.2d 245). The distinction is important because under Wisconsin’s OWI penalty scheme a court must count prior “convictions.” See § 343.307(1)(a). And §340.01(9r) defines a conviction as “an unvacated determination of guilt” or a determination that a person has violated the law. Opinion ¶¶16-17. The court of appeals then discusses the dictionary definitions of “expunge” and “vacate.”

This seems logical until you read State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 (including its footnotes), which the court of appeals says it did. Opinion ¶¶28-29. Leitner contains this pesky little paragraph at ¶39 (emphasis supplied):

Expunction of a court record of a conviction enables an offender to have a clean start so far as the prior conviction is concerned. As the State points out, expunging the court record provides substantial advantages to the offender: An expunged record of a conviction cannot be considered at a subsequent sentencing; an expunged record of a conviction cannot be used for impeachment at trial under § 906.09(1);²⁹ and an expunged record of a conviction is not available for repeater sentence enhancement.³⁰ 

See footnote 30? It refers to 939.62, which governs increased penalties for repeaters. It says that an actor is a repeater if he was convicted of a felony or 3 misdemeanors within 5 years preceding the commission of the crime for which he is being sentenced. Those conviction must “remain of record and unreversed.” §939.62(2).  In other words, an expunged record of conviction cannot support an enhanced  penalty for repeaters. See also State v. McAllister, 107 Wis. 2d 532, 535, 319 N.W.2d 865 (1982), which holds that penalty structure for OWIs “is nothing more than a penalty enhancer similar to a repeater statute . . .”

Did the legislature intend to treat OWI repeaters differently than other repeaters? Section 340.01(9r)’s use of the word “unvacated” without commenting on whether it is “of record” suggests maybe it did.  So does the last sentence of 973.015(1m) which says the expunction provision “does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under s. 343.23(2)(a).”

All of this seems at odds with Wisconsin’s determination to go easy on drunk driving.  The court of appeals decision mentions none of this. Bottom line: this issue is worthy of closer scrutiny.