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Out-of-state deferred OWI prosecution counts as prior in Wisconsin

State v. Jeffery Scott Wiganowsky, 2019AP884-CR, District 4, 10/24/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Wiganowsky was charged for OWI in Wyoming in 2015. He negotiated a deferred prosecution agreement, which he successfully completed, so the charge was dismissed. But his driving privileges were administratively suspended due to his blood-alcohol content. (¶9). That counts as a prior OWI “conviction” under §§ 340.01(9r) and 343.307(1)(d).

When Wiganowsky was arrested for OWI in Wisconsin in 2018, he was charged with OWI, 2nd offense, based on the Wyoming case. The trial court agreed with his argument that the Wyoming case didn’t count because it was dismissed after he completed the deferred prosecution agreement. (¶¶2-11). The court of appeals reverses based on State v. List, 2004 WI App 230, 277 Wis. 2d 836, 691 N.W.2d 366, and State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213.

List held that the term “convictions” under §§ 340.01(9r) and 343.307(1)(d) isn’t limited to “formal” convictions under the law of another jurisdiction, but could include “court supervision” that doesn’t result in a conviction. Carter approved of List‘s reasoning about the purposes behind §§ 340.01(9r) and 343.307, and held that an administrative suspension based on intoxicated driving in another jurisdiction was a “conviction.” (¶¶13-26).

Those decisions doom Wiganowsky’s argument:

¶27     All of the discussion in List and Carter summarized above establishes that the Wyoming BAC violation here, which is the prior conviction alleged in the amended complaint, must be counted under Wisconsin law. That is, under those cases, the Wyoming BAC violation was a “determination” by an authorized administrative tribunal that Wiganowsky failed to comply with a Wyoming law prohibiting a specified concentration of alcohol in his blood while operating and Wiganowsky should not receive “preferential treatment” on the ground that Wyoming authorities had the ability to, and did, offer him a deferral option to resolve a criminal charge.  ….

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