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OWI — conviction for “first” offense must be vacated where defendant has prior OWIs despite delay in moving to vacate conviction and even though priors were from another state

Clark County v. Rex A. Potts, 2012AP2001, District 4, 3/28/13; court of appeals decision (1-judge, ineligible for publication); case activity

Potts’s 1996 conviction for OWI in violation of a county ordinance is void and must be vacated because defendant had prior convictions for operating while intoxicated—even though Potts did not move to vacate the judgment until 2012 and even though the prior convictions were from Massachusetts.

The circuit court rejected Potts’s motion for relief from the 1996 judgment because of his delay in bringing the motion, citing Wis. Stat. § 806.07(2)’s requirement that motions be brought within a reasonable time. (¶4). This conclusion is wrong, the court of appeals holds. In Neylan v. Vorwald, 124 Wis. 2d 85, 97, 368 N.W.2d 648 (1985), the Wisconsin Supreme Court held that the reasonable time requirement under § 806.07(2) doesn’t apply to void judgments because “[a] void judgment may be expunged by a court at any time” and “[i]t is the duty of the court to annul an invalid judgment.” (¶6). The circuit court thought the rule in Neylan was contrary to the plain language of the statute and that it might be time for the rule to change, but the court of appeals reminds circuit courts they are bound by a supreme court decision despite their disagreement with it. (¶6 n.2).

The County conceded Potts’s motion was allowed under Neylan, but argued the 1996 conviction is not void because Potts hasn’t shown that Massachusetts’s OWI law was substantially similar to Wisconsin’s OWI law at the time of the offense, and therefore the priors did not count under Wisconsin law. ( ¶¶5, 10). The court disagrees:

¶11      We stated in State v. White, 177 Wis. 2d 121, 126, 501 N.W.2d 463 (Ct. App. 1993), that another state’s drunk driving statute is “substantially similar” to Wisconsin’s drunk driving statute as long as that state’s statute “prohibit[s] the use of a motor vehicle while intoxicated.”  The requirement that the laws be “substantially similar” does not mean that the drunk driving statute of another state must contain the same elements as Wisconsin’s drunk driving statute. See State v. Puchacz, 2010 WI App 30, ¶12, 323 Wis. 2d 741, 780 N.W.2d 536. Indeed, “Wisconsin even counts prior offenses committed in states with OWI statutes that differ significantly from our own.” Id. ….

Taking judicial notice of Massachusetts’s drunk driving laws in effect at the time of Potts’s prior convictions, the court concludes Massachusetts’s OWI law in effect at the time of Potts’ OWI convictions in that state was “substantially similar” to Wisconsin law and that those convictions should have been counted for purposes of determining the proper charge for Potts’s 1996 Wisconsin OWI offense. (¶12).

Finally, the court rejects the County’s argument that Potts should have disclosed his Massachusetts convictions at the time of his 1996 conviction, and that because he didn’t he is not entitled to relief now:

We understand the County to be asking us to adopt a good faith exception to the general rule that a defendant is entitled to relief from a judgment that is void.[4] We decline to do so.  The County cites to no legal authority to suggest that such a good faith exception exists.


[4]  We appreciate the circuit court’s and the County’s frustration with Potts’ failure to disclose his prior Massachusetts OWI convictions.  However, the County does not cite any legal authority showing that a defendant, such as Potts, is required to disclose his prior convictions from another state.

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