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OWI – PAC – Countable Convictions

State v. Frederick J. Scott, 2012AP533-CR, District 3, 9/11/12

court of appeals decision (1-judge, ineligible for publication); case activity

The threshold for illegal alcohol concentration is reduced from .08 to .02 for drivers who have at least 3 prior qualifying convictions. Scott had three priors, thus was subject to arrest and prosecution for driving with a PAC of .03. However, prior convictions may be collaterally attacked if obtained in violation of the right to counsel, State v. Baker, 169 Wis. 2d 49, 59-60, 485 N.W.2d 237 (1992), and in the event of a successful such attack, “the result … [is] to invalidate the conviction[],” State v. Deilke, 2004 WI 104, ¶17, 274 Wis. 2d 595, 682 N.W.2d 945. Scott collaterally attacked one of his priors, and the trial court agreed it had been obtained in violation of his right to counsel. Scott then argued his countable priors now numbered two, therefore his applicable alcohol concentration threshold was .08. The trial court rejected the argument, ruling that collateral attacks relate only to penalty enhancers, not offense elements. Found guilty as a result, Scott appeals, and the court of appeals agrees with his argument:

¶17      Here, even though Scott had three countable convictions when he operated the motor vehicle, his successful collateral attack invalided [sic] one of the countable convictions.  See Dielke, 274 Wis. 2d 595, ¶17.   As a result, the court erred by relying on this invalidated conviction to support its finding that Scott was subject to the .02 alcohol level.  Without three countable convictions, Scott is only prohibited from operating a motor vehicle with an alcohol concentration of .08 or more.  His alcohol concentration was .03.  As a matter of law, Scott cannot be guilty of operating with a prohibited alcohol concentration.

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