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OWI – reopening case improperly treated as a first offense

State v. James A. Krahn, 2012AP1898-CR, District 2, 1/30/13; court of appeals decision (1-judge, ineligible for publication); case activity

Motion to dismiss second-offense OWI charge was properly denied, where the charge resulted from the state’s successful motion to reopen a conviction for a first offense that had been entered a few weeks after a conviction in another case that was also treated as a first offense:

¶6        Wisconsin trial courts have no subject-matter jurisdiction over second or subsequent drunk driving offenses tried as first offenses contrary to Wis. Stat. §§ 343.307 and 346.65(2)(am).  See Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 721-22, 324 N.W.2d 682 (1982).  The orders and judgments of a court acting in excess of its jurisdiction are void and may be expunged by a court at any time.  State v. Banks, 105 Wis. 2d 32, 43, 313 N.W.2d 67 (1981).  Thus, any proceeding that tries a second-time OWI offender as a first-time offender contrary to the mandatory language of the drunk driving statutes is invalid and no jeopardy attaches to the resulting conviction.  See Rohner, 108 Wis. 2d at 722.  Krahn was properly convicted of second-offense OWI.

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