The supreme court unanimously holds that the state proved by a preponderance of the evidence that Loayza was convicted of OWI in California in 1990, making his current Wisconsin offense a eighth offense.
A certified copy of the judgment of conviction in the 1990 case would have clinched the matter, but the state didn’t offer one; instead, it relied on “other competent proof” of the conviction, State v. McAllister, 107 Wis. 2d 532, 539, 319 N.W.2d 865 (1982)—specifically, a certified copy of Loayza’s DOT driving record, which is admissible evidence to establish repeater status, State v. Van Riper, 2003 WI App 237, ¶2, 267 Wis. 2d 759, 672 N.W.2d 156, plus documents relating to three convictions listed on the DOT record from California in 1989, 1990, and 1991. (¶¶7, 10-12).
Loayza conceded the 1991 conviction, but argued there was insufficient proof of the 1989 and 1990 offenses. The circuit court ultimately agreed the 1989 offense wasn’t proven, and so sentenced Loayza for an eighth offense. (¶¶13-15). The question in this appeal is whether the 1990 offense was proven. The material from that case—including the docket printout—doesn’t show a conviction for OWI. Further, there were three charges in the case (OWI, PAC, and OAR), but the plea form doesn’t show which ones Loayza pled to and references only the OAR charge. This led the court of appeals to conclude the record didn’t prove there was an OWI conviction in that case. (¶¶11, 17-18, 21-22, 33-34).
The supreme court re-reads the entire record and, in light of the burden of proof (preponderance of the evidence), concludes the state proved the 1990 OWI conviction. It relies first on two admissions of the conviction by Loayza, which is significant because “a defendant’s admission, whether given personally or imputed through counsel, is competent proof of prior . . . convictions.” State v. Spaeth, 206 Wis. 2d 135, 148, 556 N.W.2d 728 (1996). Specifically:
- Loayza had mounted a collateral challenge in this case to all three prior California convictions listed on his DOT record, from 1989, 1990, and 1991, and in a supporting affidavit stated the convictions existed but that he could not recall if he was represented by counsel. (¶8) “Thus, Loayza’s own affidavit, at a bare minimum, acknowledges the existence of the 1990 conviction.” (¶36).
- The complaint filed in the 1991 case alleged the prior 1990 conviction, and the minute sheet of the plea in the 1991 case says Loayza admitted to three prior OWI convictions, one of which must’ve been in the 1990 case. (¶37).
In addition, the 1990 case records show that Loayza’s probation was revoked and he was sentenced on “count 1,” which in the complaint corresponds to the OWI charge. The court infers his probation could not have been revoked on count 1 had he not been placed on probation on count 1, and he could not have been placed on probation had he not been convicted. (¶39).
This decision doesn’t develop any new law, though it is seems to offer one lesson for practitioners: Don’t collaterally attack a prior conviction without first ascertaining that it exists or can be proven to exist; or, if that’s not ascertainable, make the attack conditional (“if the conviction exists”) to avoid an admission, express or implied, that the conviction exists.
For what it’s worth for future litigation on issues like this, the court stresses a couple of times (¶¶27, 35, 40) the state’s low burden of proof, while also emphasizing that “the information contained in a DOT driving record is not unassailable” (¶41) and even quoting the court of appeals remark that “[a] DOT record may be sufficiently reliable when that is the only information available, but additional information may cast doubt on the reliability of a DOT entry to a degree that makes the entry insufficiently reliable to meet the State’s burden.” (¶43). It also emphasizes that a challenge to a DOT driving record does not involve any burden shifting. “Both the burden of production and the burden of proof remain on the State to prove prior convictions by a preponderance of the evidence whether or not a defendant raises an objection.” (¶44).