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OWI was properly charged as a first offense because prior was more than 5 years old

City of Kaukauna v. Grant R. Loescher, 2014AP954, District 3, 11/4/14 (1-judge decision; ineligible for publication); case activity

Loescher’s 1997 conviction for first-offense OWI is not void because it was properly counted as a first offense despite his OWI conviction in 1992.

Loescher claimed his 1997 offense should have been charged as a criminal second-offense OWI because he had a first-offense conviction in 1992, and therefore the municipal court judgment in the 1997 case is void because the court did not have subject matter jurisdiction to convict him of a criminal OWI offense, City of Kenosha v. Jensen, 184 Wis. 2d 91, 99, 516 N.W.2d 4 (Ct. App. 1994). But it turns out the 1997 case was properly charged as a first offense:

¶5        …[W]hen [Loescher] was convicted in 1997, the applicable penalty provision actually had a five-year time period for the purposes of counting prior convictions that would trigger escalated charges and penalties.[3] This information, combined with our examination of the record, leads us to conclude that this case can be resolved quite simply. Wisconsin Stat. § 346.65(2c) (1995-96), provided “the 5-year … period shall be measured from the dates of the refusals or violations that resulted in the revocation or convictions.” Loescher’s offenses, dated March 28, 1992 and April 16, 1997, narrowly fall outside the five-year time period. As a result, Loescher was properly charged with first-offense OWI in 1997, and the Kaukauna Municipal Court had jurisdiction to adjudicate the charge. Therefore, the judgment is valid.

The trial court questioned whether Loescher’s motion to reopen and vacate the 1997 conviction came too late, as it wasn’t filed till 2013. Loescher argued that under Neylan v. Vorwald, 124 Wis. 2d 85, 96-98, 368 N.W.2d 648 (1985), a motion under § 806.07(1)(d) isn’t subject to the “reasonable time” limitation in § 806.07(2). Given its resolution of the case, the court of appeals doesn’t address this claim.

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