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OWI — Enhancement – Collateral Attack, Prior Refusal

State v. Keith S. Krause, 2006 WI App 43
For Krause: Roger G. Merry

Issue/Holding: Because collateral attack on a prior conviction used as a sentencing enhancer is limited to denial of counsel, and because the right to counsel does not attach to a civil proceeding, a refusal revocation is not subject to collateral attack on its use as an OWI enhancer:

¶12      In an enhanced-penalty situation, a collateral attack on a prior conviction used for enhancement must be founded on a claim of actual or constructive denial of the constitutional right to counsel. See Hahn, 238 Wis.  2d 889, ¶17. However, because a refusal hearing is a civil proceeding, no constitutional right to counsel attaches. See Shoepp, 204 Wis. 2d at 272;Stroe, 256 F.3d at 500. Accordingly, Krause did not have a constitutional right to counsel upon which to base his collateral attack. We affirm the judgment of conviction and the order denying postconviction relief.

The fact that a refusal is a civil proceeding might support lines of attack not available to the typical enhancer. Independent collateral attack is supported by § 806.07(1)(a), which in some ways is a more flexible remedy than § 974.06. You don’t for example have to be in custody, nor does your argument have to raise a constitutional or jurisdictional defect. On the other hand, there is a one year (or “reasonable time”) limitation. Krause did file a § 806.07 motion but came up against the time bar, ¶4. He then filed a § 974.06 motion which was denied on the basis that he hadn’t been denied counsel, ¶5. The motion could just as easily have been barred on the basis that Krause wasn’t in custody under the refusal revocation, though the court doesn’t say as much. For that matter, it ought to be recalled as a general proposition that if the attack involves denial of counsel the challenge can be made through the enhancement proceeding itself, where procedural bars arguably fall away. State v. David M. Hahn, 2000 WI 118, ¶28. But as Krause clarifies, there’s no merit to such an argument regardless of the forum, if the enhancer is a refusal. Still, if there’s some other basis for attack, § 806.07 would seem to be the vehicle. One other potential sticking point. OWI enhancement is based on the “prior conviction” rule; see, e.g., State v. Brandon J. Matke, 2005 WI App 4, ¶16 for explanation. But that rule is based on the idea that there was a prior conviction—which is to say, a finding of guilt at a proceeding at which the defendant had the rights to jury trial and proof beyond reasonable doubt.


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