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Defendant forfeited challenge to improper treatment of second OWI as civil offense

Eau Claire County v. Duane D. Collier, 2016AP366, District 3, 2/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Collier’s belated challenge to his 1992 civil forfeiture judgment for OWI 1st offense is foreclosed by City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738.

Collier, who is facing an OWI 4th offense charge, sought to vacate the judgment for his 1992 OWI 1st, arguing it is void because at the time the judgment was entered he had a prior OWI conviction in Minnesota, and that required the case to be charged as a criminal offense. Collier relied on County of Walworth v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982), which held a court had no subject matter jurisdiction over an OWI case that was improperly charged as a civil offense because the defendant had a prior countable OWI conviction. (¶¶2-4).

But after Collier filed his motion to vacate the supreme court decided Booth. As explained here, that case holds that improperly charging of an OWI as a civil offense isn’t a jurisdictional problem, but a competency issue, and failure to timely object to competency forfeits the claim. Like the defendant in Booth, Collier waited too long (23 years) to bring his motion to vacate, and then brought it only when facing a new OWI charge, so he’s forfeited the claim. (¶¶5-9).

Collier also tries arguing that under Rohner the County simply lacked statutory authority to charge and convict him of a criminal offense. This fails because it is just an attempt to sidestep and nullify Booth. (¶¶10-13).

Nor does it matter that Eau Claire didn’t show it was unaware of Collier’s prior conviction when it charged him with a civil offense. Collier filed the motion to vacate, so he had the burden of proving the county was aware of the prior offense. He hasn’t meet that burden, especially given the circuit court’s unchallenged finding that the county didn’t know about it. (¶¶14-15).

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