It seems the City didn’t know of Lowery’s two prior OWI convictions when it charged him with, and obtained a conviction for, OWI first under a city ordinance. Only the State (not a city) may prosecute someone for OWI, third offense. So the circuit court lacked subject matter jurisdiction to try and convict Lowery for OWI first.
The court of appeals took a page from SCOW’s decision in County of Walworth v. Rohner, 108w is. 2d 713, 324 N.W.2d 682 (1982), where:
The supreme court concluded that criminal proceedings and penalties were required for the second OWI offense, and that, “[b]ecause in Wisconsin only the state has the power to enact and prosecute crimes and criminal penalties are required, the trial court was without jurisdiction to try the defendant under the Walworth county ordinance.” Id. at 718. Thus, according to the court in Rohner, a circuit court lacks subject matter jurisdiction over a second and subsequent offense OWI charged under a county’s or municipality’s first-offense ordinance. Slip op. ¶8.
The City tried to skirt this result by claiming that Lowery forfeited the argument by not objecting before the circuit court. Bzzzt! Wrong strategy. An “objection to a court’s subject matter jurisdiction may be brought at anytime . . . ‘A void judgment cannot be validated by consent, ratification, [forfeiture], or estoppel.'” Slip op. ¶13 (quoting Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W. 2d 695 (1997)).