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California “wet reckless” offense counts as prior OWI in Wisconsin

State v. Evan J. Schnoll, 2021AP1119-CR, 4/28/22; District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

In 2020, Schnoll was charged with OWI 2nd. He challenged the validity of his prior OWI, which occurred in California, arguing that it could not be counted under Wisconsin law. The circuit court rejected his argument and counted the California conviction. The court of appeals granted Schnoll’s petition for leave to appeal but now affirms the circuit court.

This appeal turns on whether the California conviction counts under Wisconsin law. If it does, Schnoll’s Wisconsin offense counts as a misdemeanor under Wisconsin’s OWI/PAC penalty enhancer statutes. State v. Braunschweig, 2018 WI 113, ¶¶15-17, 384 Wis. 2d 742, 921 N.W.2d 199. Otherwise, he’s looking at a first offense civil forfeiture. Opinion, ¶1.

Section 343.307(1)(d) tells courts what counts as a prior OWI when it occurred in another state. For example, Wisconsin courts must count offenses committed in states where the statute prohibits conduct similar to the list of prohibited conduct, such as using a motor vehicle while intoxicated.

In 2010 (almost 10 years before his Wisconsin offense), Schnoll was charged in California with violating Cal. Veh. Code §23152(a) and (b), which prohibit driving while under the influence of alcohol and driving with .08 or greater BAC.  Schnoll ended up pleading to simple reckless driving under Cal. Veh. Code §23103.5(a). In California, this is known as a “wet reckless” conviction. Opinion, ¶¶18-24.

Schnoll says that a 10-year-old, purged “wet reckless” conviction should not count as a prior OWI under Wisconsin law. The court of appeals says it should partly because the conduct prohibited by the California law (using a car with a BAC of .08) falls squarely within prohibited conduct listed in §343.307(1)(d) (using a car while intoxicated or in excess of a range of alcohol concentration). Opinion, ¶23.

The fact that the California conviction has been purged is irrelevant because under Wisconsin law expunged, yet unvacated, OWI convictions count in the penalty enhancement scheme. Opinion, ¶25. 

Also, under §343.307(1), prior OWIs count if they occurred within 10 years of the current conviction. In Schnoll’s case, the California OWI conviction squeaked in under 10 years. Opinion, ¶27.


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