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Missing records raise questions in 9th-offense OWI case

By: Michaela Paukner, [email protected]//November 11, 2020//

Missing records raise questions in 9th-offense OWI case

By: Michaela Paukner, [email protected]//November 11, 2020//

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Missing records in a ninth-offense OWI case have the Wisconsin Supreme Court considering what constitutes enough proof to support a conviction.

Alfonso Loayza was charged with one count of operating while intoxicated as a ninth offense and one count of operating with a prohibited alcohol concentration as a ninth offense. Loayza pleaded guilty to one OWI, with the plea contingent on the state being able to prove the number of prior convictions at sentencing.

The State’s complaint identified three drunken-driving convictions in California in 1989, 1990 and 1991, and five convictions in Wisconsin. It offered a driving record from the Wisconsin Department of Transportation and a series of documents from the California cases as evidence. The documents included the complaint, a plea questionnaire and waiver of rights form, and the criminal docket for the 1990 California offense. The 1991 documents included the complaint, a bench warrant and a minute sheet.

Loayza conceded that the State offered sufficient proof for the 1991 offense, but not for the 1989 or 1990 offenses.

A circuit court found the proof to be sufficient and imposed the sentence for a ninth-offense OWI. The court then granted Loayza’s motion for re-sentencing and amended a judgment of conviction to eighth-offense OWI.

Loayza appealed the conviction, and the appellate court said the records from the California cases did not include a judgment of  conviction for the 1990 case and raised doubt about whether the conviction was for an OWI. The Court of Appeals reversed and remanded with directions that the circuit court sentence Loayza for a seventh-offense OWI.

The State brought the case to the Supreme Court, asking the justices to reverse the appellate court’s decision and explain how courts should assess a DOT record for a judgment of conviction.

During Tuesday’s oral arguments, Michael Sanders, assistant attorney general, said a defendant admitting to a conviction is proof, and Loayza has done so twice.

“He did so on a form in which a judge signed, and he did so at a hearing where he had an attorney,” Sanders said. “There’s no question that he admitted to his 1990 conviction in that state.”

Jennifer Lohr, attorney for Loayza, said Loayza’s affidavit was not an admission. Rather, it was a statement that he had no memory of what happened in the cases.

“What Mr. Loayza needed to do to hold the State to its burden was just say he wanted the State to meet its burden,” Lohr said. “He does not have an obligation to present evidence, and he does not have an obligation to affirmatively deny that it exists.”

Lohr argued that the State was speculating on what was missing from the California record. Due to discrepancies and missing information, she said the 1990 case file makes the other evidence unreliable.

“We’re arguing that because these records do exist but don’t show what the state is saying they show, that is what calls into question the reliability of the DOT driving record,” Lohr said.

Sanders, meanwhile, said the appellate court used that one file from 1990 to say the DOT record was not even reliable by a preponderance.

“It makes no sense to assume that because there are things that are most commonly be found in a court record that aren’t there, that those didn’t at one time exist,” Sanders said.

The State had also asked the court to consider writing a new rule that said a department record is reliable evidence if that’s all a court had, rather than saying it may be reliable evidence.

“It is sufficiently reliable if that’s all there is because any court who sees a department record, and there’s nothing else — there is no claim by a defendant that it’s wrong — a court is always going to find that’s enough,” Sanders argued.

Sanders backed away from how his brief had posed the rule, saying he wasn’t trying to shift the burden of proof to the defendant, even if that’s how it may have sounded.

Lohr believed the Court of Appeals’ decision was an accurate statement of the law.

“It’s the state’s burden to prove evidence of a prior conviction, and that burden must stay with the state,” Lohr said.

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