Drunk Driver Drinking Beer while Driving a Car

By Joe Kelly

Courthouse News

MADISON, Wis. (CN) – Drawing a line between expunged and vacated cases, the Wisconsin Supreme Court ruled Friday that expunged convictions for operating while intoxicated are fair game for consideration in sentencing for later OWI convictions.

In a 25-page opinion penned by Justice Annette Ziegler, the state’s high court affirmed an appellate ruling that counted Justin Braunschweig’s OWI conviction from 2011 as a prior conviction in adjudicating his 2016 OWI arrest, even though the first charge had been expunged years before.

In 2011, Braunschweig was convicted of injuring another person by operation of a vehicle while intoxicated. The Jackson County Circuit Court later ordered an expunction of his conviction.

When Braunschweig was again arrested and charged with driving while intoxicated nearly five years later, the state relied on his expunged 2011 conviction as a prior predicate offense in order to charge him as a repeat offender.

Wisconsin’s laws are unique in that a first OWI arrest is a civil offense, but any subsequent offenses are criminal charges.

Braunschweig appealed before his 2016 trial, arguing that the expunged 2011 OWI no longer qualified for consideration in charging a second offense. The circuit court overruled him and he was convicted. His sentence was stayed pending appeal.

When expunction is ordered, the clerk of court seals the case and destroys the court records, according to Friday’s ruling.

By contrast, a court may vacate a sentence and set a judgment aside if the court ruled without jurisdiction, the sentence was not authorized by law, or there has been some other infringement of the convicted person’s constitutional rights.

Justice Ziegler noted that “Vacatur, unlike expunction, removes the fact of the conviction,” and the court records for vacated convictions are not destroyed or hidden from public view.

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

Ziegler pointed out that the Department of Transportation, or DOT, keeps its own records separate from the courts, therefore acknowledging “the separate and distinct responsibility for recordkeeping in the executive branch as opposed to that in the judicial branch.”

“In sum,” Ziegler wrote, “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’ and thus, must be counted for purposes of supporting a prior conviction in OWI-related offenses.”

However, in considering an expunged OWI as a predicate offense, the state needs to prove this prior conviction “by a preponderance of the evidence which can be satisfied by a certified DOT record,” according to the ruling.

Braunschweig’s attorney, Michael Witt with Criminal Defense & Civil Litigation LLC based in Jefferson, Wisconsin, could not be immediately reached Friday for comment.