Motor Vehicles – OWI – ineffective assistance – prior convictions

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Wisconsin Court of Appeals

Criminal

Motor Vehicles – OWI – ineffective assistance – prior convictions

It was not ineffective assistance of counsel for a defendant’s attorney not to request the court to require the State to stipulate that the defendant’s BAC exceeded the legal limit.

“Krancki argues that his trial counsel was ineffective for not obtaining a court order requiring the State “to stipulate or prevent the jury from hearing evidence” that he was subject to a .02 percent BAC limit. His argument presumes that jurors would know that as Krancki was subject to a .02 BAC limit (rather than .08 percent or some other limit) that he had multiple prior OWI convictions and would use that information to infer he had a propensity to drive while intoxicated. We are not persuaded.”

“Krancki primarily relies on State v. Alexander, 214 Wis. 2d 628, 651, 571 N.W.2d 662 (1997), where our supreme court held that the State could not admit evidence of a defendant’s prior OWI convictions solely to prove the defendant has been convicted when the defendant has admitted to the convictions. The Alexander court reasoned that the danger of unfair prejudice outweighed the probative value of the defendant’s admission to prior convictions. Id. at 645; see also WIS. STAT. § 904.03 (2011-12). The problem with Krancki’s reliance on Alexander, however, is that the State did not admit evidence of Krancki’s prior OWI convictions. The State admitted evidence that he had a .26 BAC, which was probative to the jury question concerning whether he was over the .02 BAC limit at the time that he drove. This evidence was not unfairly prejudicial; it was evidence necessary to prove an element of the crime charged.”

“Trial counsel testified at the Machner hearing that he had requested a stipulation from the State that Krancki’s BAC was over the permissible limit and that his request was rejected. To suggest that trial counsel’s performance was deficient for not asking the court to order the State to so ‘stipulate’ borders on absurd.”

Affirmed.

Recommended for publication in the official reports.

2013AP1987-CR State v. Krancki

Dist. II, Waukesha County, Kieffer, Hassin, JJ., Reilly, J.