The supreme court’s recent decision in City of Eau Claire v. Booth Britton, 2016 WI 65, disposes of Giese’s claim that the circuit court lacked jurisdiction over a mistakenly charged second-offense OWI.
In 2009 Giese was arrested for OWI and charged with a second offense based on his prior conviction in 1989. He pled and served 20 days in jail. (¶2). The problem is that at the time the complaint was filed, § 346.65(2)(am)2. (2007-08) required the prior offense be less than 10 years old. Giese sought to void the conviction, arguing the circuit court lacked subject matter jurisdiction to convict him of a criminal OWI offense given that his prior offense was more than 10 years old. (¶¶3-5).
Booth Britton controls here. In that case the defendant claimed the circuit court had no jurisdiction to enter judgment against her for an OWI first, a civil offense, because she had a prior OWI that the prosecutor overlooked and, therefore, should have been charged with OWI second, a criminal offense. The supreme court held the circuit court had subject matter jurisdiction despite that defect because the state constitution gives circuit courts subject matter jurisdiction over all matters, civil and criminal. 2016 WI 65, ¶¶2-4, 7, 14-19. Despite the factual differences between Booth Britton and this case, the same rule applies:
¶11 Here, the complaint alleged that Giese’s first-offense OWI occurred more than twenty years before his second offense. Therefore, as a matter of law, Giese should not have been charged or convicted of second-offense OWI. However, under the holding in Booth Britton, the circuit court in this case had both civil and criminal subject matter jurisdiction. As noted by the circuit court, the complaint against Giese correctly charged an offense of operating while intoxicated. Regardless of whether Giese was charged with a criminal or civil offense of operating while intoxicated, there is no doubt that the circuit court had subject matter jurisdiction over either type of offense.
While the circuit court may have lacked competency to handle the mistaken charge, a challenge to competency is forfeited if it’s not made in the circuit court in the first instance. Booth Britton, 2016 WI 65, ¶¶22, 25. Giese doesn’t argue now that the circuit court lacked competency, and he almost certainly didn’t raise the issue back in 2009—and even if he had, his no contest plea waived the claim. (¶12 n.2).