Singh appealed an OWI second, which the court of appeals summarily reversed and remanded with an order for the circuit court to provide the relief due under §971.13–voiding any penalty in excess of the statutory maximum. On remand, the circuit court did as ordered, Singh moved for reconsideration asking the circuit court to vacate the judgment of conviction, vacate his plea, and dismiss the case. Motion denied. Decision affirmed.
Because Singh proceeded pro se, his briefs aren’t available on line. According to the court of appeals, he argued that the circuit court misread the court of appeals remand order and thus erred in denying reconsideration. The court of appeals held that the circuit court read the order perfectly. Opinion, ¶¶21-24.
Singh also challenged §343.307(1)(d), (e), and (f), which allow an administrative suspension for a refusal to submit to a blood test to be used as a conviction when determining the range of penalties for a successive OWI. See North Dakota v. Birchfield, 136 S. Ct. 2160 (2016). The court of appeals held that he forfeited this argument by not raising it in the circuit court. Opinion, ¶¶25-28.
The court of appeals erred on the last point. A facial challenge to the constitutionality of a statute goes to subject matter jurisdiction and cannot be waived. Winnebago County v. Christopher S., 2016 WI 1, ¶4 n. 6, 366 Wis. 2d 1, 878 N.W.2d 109.