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Conviction for OWI 1st reversed and remanded for entry of conviction for OWI 3rd

State v. Ronald Marshall Jewett, 2015AP1014-CR, District 3, 8/30/16 (not recommended for publication); case activity (including briefs)

The question presented in this case is whether a certified driving record from the Wisconsin DOT is sufficient evidence to establish 2 prior OWI convictions in Minnesota–even though the original court records for those convictions no longer exist. The court of appeals says “yes.”

The State successfully prosecuted Jewett for OWI, but the circuit court declined to convict and sentence him for OWI third-offense based on prior OWI convictions that occurred in Minnesota. The court of appeals reversed pursuant to State v. Van Riper, 2003 WI App 237, 267 Wis. 2d 759, 672 N.W.2d 156.

¶12  Specifically, we stated, “[h]ere, a certificate bearing the State of Wisconsin DOT seal and the signature of the [Department of Motor Vehicles] administrator accompanies Van Riper’s DOT driving record. Both Wisconsin case law and statutes support the admission of this certified document as proof of Van Riper’s prior convictions at trial.” Id., ¶18. Moreover, we concluded the fact “[t]hat one of Van Riper’s convictions occurred in Minnesota does not change our decision.” Id., ¶19 (noting that the Wisconsin DOT is statutorily required to maintain a record of all matters that affect the counting of prior convictions for PAC purposes).

¶13 Van Riper controls the sufficiency of the State’s proof of Jewett’s prior OWI convictions. The State offered, and the circuit court accepted into evidence, Jewett’s certified Wisconsin DOT driving record. As in Van Riper, the record contains the official seal of the Wisconsin DOT and the signature of the administrator. The certified record indicates Jewett had two OWI violations in Minnesota, with offense dates of July 1, 1992, and  conviction dates of July 14, 1992, and December 29, 1992, respectively. It is irrelevant that these convictions are from Minnesota. See id., ¶19.

As this was a State’s appeal, Jewett argued that a prosecutor cannot make a sufficiency of the evidence challenge after an acquittal without violating Double Jeopardy.  His argument failed for two reasons:

¶22 First, Jewett was convicted of OWI; there was no acquittal in this case. The underlying OWI offense, and Jewett’s guilt in that regard, will not change. Second, and related, the State does not seek a second prosecution for the same OWI offense. Rather, it seeks proper sentencing and punishment of this OWI offense. While Jewett concedes that prior convictions necessary to establish an OWI defendant’s repeater status are “not an element of the offense,” see McAllister, 107 Wis. 2d at 538, he refuses to acknowledge that those prior convictions relate only to the punishment available for a successive OWI conviction, Matke, 278 Wis. 2d 403, ¶9, and that double jeopardy does not apply to sentencing decisions, see United States v. Rosales, 516 F.3d 749, 757-58 (9th Cir. 2008) (citing United States v. Booker, 543 U.S. 220, 267 (2005)) (“The Double Jeopardy Clause does not prohibit the government from appealing a sentencing ruling that does not result in acquittal.”). Here, the “sufficient evidence” to which the State points—i.e., Jewett’s certified Wisconsin DOT driving record—is only relevant to the enhanced penalty and sentence for this particular OWI violation of which Jewett is—and remains—guilty

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