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OWI Repeater: Proof, Prior “Conviction”; Appellate Procedure: Potential Sanction for Frivolous Argument

State v. Marilee Devries, 2011 WI App 78 (recommended for publication); for Devries: Matthew S. Pinix; case activity

OWI – Repeater – Proof, Prior “Conviction”

Certified copies of proceedings in foreign jurisdictions established adequate proof of prior OWI “connvictions,” § 343.307(1)(d).

¶9        When Wisconsin’s driving laws provide for the enhancement of penalties for a current offense based on prior offenses, the State must present “‘competent proof’” of those earlier offenses.  State v. Spaeth, 206 Wis. 2d 135, 148, 556 N.W.2d 728, 733 (1996) (operating after revocation) (quoted source omitted).  If the defendant does not admit the earlier offenses, the State can satisfy its burden of proof “by placing before the court reliable documentary proof of each conviction.”  Id., 206 Wis. 2d at 148, 556 N.W.2d at 733–734.  Devries seizes on the word “conviction” and, using it occasionally in its general sense to mean a judicial adjudication of guilt, ignores the special definition that we have already seen is supplied by Wis. Stat. § 340.01(9r).[3] As noted, the certified copies of the documents establish on their face that Devries’s non-appearances on the Arizona and California matters were “convictions” as defined by § 340.01(9r).  Devries has not pointed to anything in those documents that she contends is not true. …

¶10      Devries argues with respect to the Arizona matter that there is no evidence that, although she was arrested and let go, “her promise to appear served as the basis for her release.”  Putting aside the clear circumstantial evidence that the officer would not have let her go if she did not promise to appear when and where she was directed, as we have seen, Wis. Stat.§ 340.01(9r) defines “conviction” as including having “violated or failed to comply with the law in a court of original jurisdiction.”  By not appearing in court on the specified date, as directed, Devries did not “comply with the law.”  ….

Appellate Argumentation

¶13      Beyond mere assertion, Devries has not pointed to anything that even indicates that any of her constitutional rights were compromised.  Indeed, she actually contends in her main brief that she “never knowingly, intelligently, or voluntarily waived her right to the assistance of counsel in California or Arizona” even though both the Arizona and California documents indicate that she did have lawyers in those states in connection with the her drunk-driving arrests.[4] Her contention that the underlying Arizona and California matters were constitutionally flawed is wholly without merit and borders on being frivolous.[5]


[4] We caution appellate counsel for Devries that justice can only be done under accepted legal principles if all parties to a dispute take care not to exaggerate or mislead.  See Wisconsin Natural Gas Co. v. Gabe’s Constr. Co., Inc., 220 Wis. 2d 14, 19 n.3, 582 N.W.2d 118, 119 n.3 (Ct. App. 1998) (“misleading statements in briefs” violate “SCR 20:3.3, which requires candor toward tribunals.”).

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