Van Hollen: Prior OWIs should play into license revocation

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Prior drunken driving convictions will play into the Department of Transportation’s decision to revoke a license, even if they were stricken from being part of the corresponding criminal case, according to an opinion issued by Attorney General J.B. Van Hollen.

The opinion, released Friday, was requested by WisDOT Secretary Mark Gottlieb. According to Gottlieb’s letter, the Department of Motor Vehicles’ decision to revoke a license is based on operating while intoxicated convictions. The revocation proceedings are referred to as “collateral attacks” and are handled separate from the criminal case.

Gottlieb asked for the opinion, at least in part, because collateral attacks are not written in state statute, and case law allows defendants to challenge the use of prior OWI convictions in criminal cases.

According to the opinion, the DMV can count an OWI conviction, unless the conviction was vacated, for purposes of revoking a license. There is no case law, though, that allows those same privileges to extend to collateral attacks.

“A conviction that has been collaterally attacked remains on the record. It is irrelevant that the offender may have a right to have the conviction disregarded for criminal sentencing,” according to the opinion. “The revocation of operating privileges is a civil, not criminal, consequence. Follow @eheisigWLJ