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Defendant forfeited competency challenge to second OWI 1st

County of Green Lake v. Lori Melchert, 2020AP473, District 2, 2/24/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Melchert’s challenge to a prior OWI that was improperly treated as a first offense comes way too late under City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, and City of Cedarburg v. Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463.

Melchert was charged with two OWIs in close succession—November 1995 and January 1996—and was convicted of both as first offenses within 10 days of each other in March 1996. (¶¶2-3). The second one, of course, should have been treated as a crime. Facing a new OWI in 2020 Melchert attempted to reopen and dismiss that conviction because the court lacked competency to convict her of a first offense. (¶¶4-6, 11). Melchert tries to distinguish her case from Booth and Hansen, without success.

First she argues that, unlike Booth, her two OWI 1st convictions were in neighboring counties, so the county in the second case should have been aware of the first prior conviction 10 days previous, and thus should be estopped from arguing that Melchert forfeited her competency objection. (¶13) The court of appeals isn’t persuaded, finding no support in the record for the proposition the prosecutor in the second case was aware of the prior conviction and no developed legal argument as to why this would make her case different from Booth’s and Hansen’s. (¶14).

Second, she argues she had a Fifth Amendment privilege not to disclose at the time of her second conviction that she had a prior conviction. Again, Hansen and Booth arguably faced the same problem; in any event, there’s no indication in the record Melchert was asked about prior convictions, let alone whether she invoked her privilege, so the court declines to rule based on what might have happened had she been asked. (¶¶15-16).

On first blush the Fifth Amendment claim is an interesting idea, and maybe it would have some traction if the defendant was indeed asked and declined to answer. But even if that happened, and the case was still disposed of (improperly) as a first offense, sitting on that windfall for 24 years until the next OWI runs afoul of the fundamental rule and rationale of Booth: objections to competency must be timely, and “considerable delay in raising the issue suggests an attempt to play fast and loose with the court system, which is something this court frowns upon.” 370 Wis. 2d 595, ¶25.

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