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City of Eau Claire v. Melissa Booth Britton, 2015AP869, review granted 12/3/15

On a bypass petition; case activity (including briefs)

Issues (from the appellant’s brief):

Does a circuit court lack subject matter jurisdiction to enter an OWI 1st offense civil judgment if a defendant has a prior unknown out-of-state OWI conviction?

Is a municipality legally precluded from pursuing a civil OWI citation if the defendant could also be charged criminally?

In 1990 Booth Britton was convicted of an OWI in Minnesota. In 1992, the City of Eau Claire prosecuted her for, and she was convicted of, a civil OWI first offense. Thereafter, she was convicted of 4 additional OWI offenses. While her 7th OWI charge was pending, she moved to vacate the 1992 OWI civil judgment on the grounds that the Eau Claire County Circuit Court lacked subject matter jurisdiction over the case due to the prior Minnesota OWI conviction. According to Walworth County v. Rohner, 108 Wis. 2d 713, 324 N.W.2d 682 (1982), §346.65(2)(a) mandates escalating penalties for drunk driving. A second OWI requires a criminal penalty, which only the State (not a municipality–like Eau Claire) may prosecute. Thus her 1992 civil OWI had to be vacated.

The City claimed that the circuit court simply lacked competency to adjudicate the 1992 OWI first. A court’s competency (unlike its subject matter jurisdiction) may be waived (or more precisely forfeited). And that’s what the City said Booth Britton did–she forfeited her objection to the circuit court’s competency to decide her 1st OWI–so it’s too late to vacate it now.

As explained in our post on State v. Navrestad here, there are two recent unpublished opinions that support Booth Britton’s position: City of Stevens Point v. Lowery and Clark County v. Potts. But Navrestad itself supports the City’s position. In addition to the OWI first problem, SCOW’s decision in this case should resolve the larger conflict between Rohner (circuit court has no subject matter jurisdiction in certain situations–like when an OWI is mistakenly charged as a 1st ordinance violation) and Village of Trempelau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76, 681 N.W.2d 190 (circuit courts are never without subject matter jurisdiction).

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