OWI – Sentencing Guidelines

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WI Supreme Court

Case Name: State of Wisconsin v. Justin A. Braunschweig

Case No.: 2018 WI 113

Focus: OWI – Sentencing Guidelines

This is a review of an unpublished decision of the court of appeals, State v. Justin A. Braunschweig, No. 2017AP1261-CR, unpublished slip op. (Wis. Ct. App. Feb. 1, 2018), affirming the Jefferson County circuit court’s  judgment of conviction of defendant Justin A. Braunschweig (“Braunschweig”) for Operating While Intoxicated (“OWI”) as a second offense.

The court is now presented with two overriding issues. First, we consider whether a prior expunged OWI conviction constitutes a prior conviction under Wis. Stat. § 343.307(1), when determining the penalty for OWI-related offenses.  We conclude that a prior expunged OWI conviction must be counted under § 343.307(1).

Second, we consider the State’s burden of proving the prior OWI conviction in second offense OWI-related offenses. We conclude that the State must prove this prior OWI conviction, which is not here an element of the offense charged, by a preponderance of the evidence. Thus, we affirm the court of appeals.

Affirmed

Concur:

Dissent:

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.