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SCOW to consider whether expunged OWI counts as prior

State v. Justin A. Braunschweig, 2017AP1261-CR, petition for review of an unpublished court of appeals decision granted 6/11/18; case activity (including briefs)

Braunschweig was convicted of first-offense OWI causing injury, but that conviction was expunged. So, when he picked up another OWI, was it a first or a second?

As discussed in our post on the court of appeals decision, the answer would be clear if we were talking about the general repeater statute, Wis. Stat. § 939.62: regarding that provision, the supreme court said in State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, that “[e]xpunction of a court record of a conviction enables an offender to have a clean start so far as the prior conviction is concerned…. an expunged record of a conviction is not available for repeater sentence enhancement.” So, why should the answer be different for the statute specific to OWI counting, Wis. Stat. § 343.307(1)(a)?

One possible answer is textual differences between the statutes: § 939.62 requires that a conviction supporting an enhancement “remain of record.” The definition of “conviction” that applies to the OWI-counting statute, § 340.01(9r), also disqualifies certain priors–but only those that have been “vacated.” Per the court of appeals, an “expunged” conviction is one of which the court record has been destroyed–that is, it does not “remain of record,” so it doesn’t satisfy § 939.62–but it has not been “vacated,” so it does satisfy § 340.01(9r). (¶18). We’ll see whether this linguistic distinction convinces the supreme court that an expunction is not really a “clean start” for an OWI conviction.

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