OWI – Ineffective Assistance of Counsel

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WI Court of Appeals – District IV

Case Name: State of Wisconsin v. Ryan C. Diehl

Case No.: 2019AP1176-CR

Officials: Blanchard, Graham, and Nashold, JJ.

Focus: OWI – Ineffective Assistance of Counsel

Ryan Diehl appeals a judgment of conviction for operating a motor vehicle with a prohibited alcohol concentration (PAC) and an order denying his motion for postconviction relief. Because Diehl had been previously convicted of three or more OWI offenses, the PAC that applied to him was only .02, not .08 as it is for most drivers. Diehl stipulated to his prior OWI convictions for purposes of establishing that he was subject to a .02 PAC. Therefore, consistent with State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997), evidence of his prior convictions was inadmissible at trial. The prosecutor nevertheless asked multiple questions that invited the jury to infer that Diehl was a repeat offender with multiple OWI convictions.

Diehl argues that the prosecutor’s questions were irrelevant and unfairly prejudicial under the circumstances and that his trial counsel was constitutionally ineffective for failing to object to them. We agree, and accordingly we vacate the conviction and remand for a new trial.

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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.