943 N.W.2d 544
Wis.2020Background:
- The City of Cedarburg filed a motion for reconsideration asking the Wisconsin Supreme Court to modify ¶30 of its February 11, 2020 opinion in City of Cedarburg v. Hansen, arguing the court overlooked State v. Braunschweig.
- Braunschweig (2018) held the State must prove a defendant's prior OWI conviction by a preponderance of the evidence for second-offense OWI-related charges because the prior is not a statutory element of the offense.
- The Supreme Court granted reconsideration and amended ¶30 to replace language stating the State must prove priors "beyond a reasonable doubt" with language requiring proof by a preponderance of the evidence.
- The court reiterated that when a statute (in some PAC cases) makes a predicate prior itself an element of the offense, the higher beyond-a-reasonable-doubt standard applies.
- The court also noted that a city attorney is not required to allege or prove that a defendant had no prior offenses.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper burden to prove prior OWI convictions for repeat-offender status in second-offense OWI-related cases | City: The court should follow Braunschweig and require a preponderance of the evidence | Hansen: Prior convictions determine status at sentencing (not guilt); ¶30's prior wording was incorrect | Court granted reconsideration and modified ¶30 to require proof of prior OWI convictions by a preponderance of the evidence; noted exception where the prior is a statutory element (beyond a reasonable doubt) |
Key Cases Cited
- State v. Braunschweig, 384 Wis. 2d 742 (2018) (held prior OWI convictions for second-offense OWI-related offenses are proved by a preponderance of the evidence)
- State v. Saunders, 255 Wis. 2d 589 (2002) (prior convictions determine repeat-offender status, not guilt)
- City of Cedarburg v. Hansen, 390 Wis. 2d 109 (2020) (original opinion amended on reconsideration to reflect Braunschweig)