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Defendant’s docs didn’t disprove out-of-state OWI prior

State v. Joseph C. Risse, 2015AP586, District 3, 1/12/16 (one-judge decision; ineligible for publication); case activity (including briefs)

Risse pled to an OWI, but was it his first or second? The state, armed with a Wisconsin Certified Driving Record, says he had a 2008 chemical test refusal in Connecticut. Risse, bearing a collection of documents from Connecticut and elsewhere, submits that they prevent the state from showing the prior beyond a reasonable doubt.

The trial court sided with Risse, noting that it “couldn’t find any conviction [including for an implied consent violation] in the Connecticut documents.” (¶8). The court of appeals bypasses the parties’ tussle over the admissibility of Risse’s proffered documents (¶9) and simply holds that, on close examination, they don’t really undercut the existence of the refusal.

Several of the documents go only to the existence, or lack thereof, of a separate conviction for intoxicated driving. (¶¶14-16). The one record that arguably tends to disprove the refusal itself is a printout from the “Criminal/Motor Vehicle Convictions” online database (¶17), which you, On Point reader, will inevitably think of as “like CCAP, only for Connecticut.” This ersatz CCAP, just like the real one, provides a disclaimer regarding the accuracy of the information it contains. (¶17). Relying on State v. Bonds, 292 Wis. 2d 344, 717 N.W.2d 133, 2006 WI 83, which held that a CCAP printout could not serve as prima facie evidence of Wis. Stat. § 939.62 repeater status, the court holds that the lack of any entry in the printout reflecting the alleged refusal did not sufficiently rebut the state’s proof on the issue. (¶17).

While Bonds is clearly the place to start the analysis of the evidentiary value of a state-maintained court record database, it doesn’t get us all the way to the result here. The question in Bonds was whether the CCAP printout, in the absence of any other evidence, could meet the state’s burden to prove the repeater beyond a reasonable doubt, as the Bonds court emphasized. 292 Wis. 2d 344, ¶¶46-49. Saying that a CCAP printout cannot eliminate reasonable doubt is not the same as saying that it cannot give rise to such a doubt. Perhaps more persuasive is the court of appeals’ observation that it is unclear from the record whether the foreign database even contains implied consent violations and, if so, for how long. (¶17).

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