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SCOW: Expunged conviction counts as prior under § 343.307

State v. Justin A. Braunschweig, 2018 WI 113, 12/21/18, affirming an unpublished court of appeals decision; case activity (including briefs)

Braunschweig was convicted in 2011 of causing injury by intoxicated operation of a vehicle. The conviction was expunged under § 973.015. In 2016 he was charged with operating while intoxicated and with a prohibited alcohol content, both as a second offense because of the 2011 conviction. The supreme court rejects his claim that the expunged conviction can’t be a predicate offense under § 343.307(1).

The court reasons that “expunction” only seals and destroys the record of a conviction, making it unlike “vacatur,” which removes the fact of conviction:

¶19      Wisconsin Stat. § 973.015, entitled “Special Disposition,” governs expunction in Wisconsin, and grants courts the discretionary authority to expunge an offender’s conviction for a crime…. “Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.” § 973.015(1m)(b) (emphasis added). Thus, when expunction is ordered, the clerk of court seals the case and destroys the court records. State v. Allen, 2017 WI 7, ¶9 & n.3, 373 Wis. 2d 98, 890 N.W.2d 245.

¶20     In contrast, Wisconsin Stat. [§] 974.06(1) instructs that a defendant seeking postconviction relief “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” A court “shall vacate and set the judgment aside” if

the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack.

[Wis. Stat.] § 974.06(3)(d). Such relief, however, is designed to address such defects with respect to the conviction or the sentence imposed, not to provide a second chance or a fresh start as is intended by the expunction statute. State v. Hemp, 2014 WI 129, ¶¶19, 20, 359 Wis. 2d 320, 856 N.W.2d 811.

¶21     Vacatur, unlike expunction, removes the fact of conviction. See State v. Lamar, 2011 WI 50, ¶¶39–40 & n.10[, 334 Wis. 2d 536, 799 N.W.2d 758] (stating that when a judgment has been vacated, “the matter stands precisely as if there had been no judgment,” and that vacating a judgment renders it “nullified and no longer in effect”). A vacated conviction, unlike expunction, does not result in a court record being hidden from public view nor are court records destroyed because of a vacated conviction. See SCRs 72.01 and 72.06. ….

¶22     Vacatur invalidates the conviction itself, whereas expunction of a conviction merely deletes the evidence of the underlying conviction from court records. Expunction, unlike vacatur, does not invalidate the conviction.


¶25     In sum, while the expunction of court records of a conviction is intended to benefit a young offender, one of the benefits is not that the underlying conviction is vacated. Therefore, under a plain meaning analysis, a conviction, even though expunged, remains “an unvacated adjudication of guilt” [see § 340.01(9r)] and thus, must be counted for purposes of supporting a prior conviction in OWI-related offenses.

State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341, supports this conclusion. Leitner authorizes a sentencing court to consider the facts underlying an expunged conviction and explicitly contemplated the use of non-court records of expunged convictions for various purposes. Moreover, § 973.05(1m)(a)1. expressly exempts DOT records from expunction, making that record available to establish that there’s an expunged conviction that may be used as a predicate offense in a repeat OWI/PAC prosecution. (¶¶26-30).

The final issue involves the state’s burden of proof regarding the existence of an expunged conviction being used as a predicate offense under § 343.307(1). The court reaffirms the preponderance of the evidence standard adopted long ago in State v. McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982). (¶¶32-39).

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