State v. Justin A. Braunschweig
921 N.W.2d 199
Wis.2018Background
- In 2011 Braunschweig was convicted of causing injury by operation of a vehicle while intoxicated; the Jackson County court later ordered expunction under Wis. Stat. § 973.015.
- In 2016 Braunschweig was arrested for OWI and PAC with a .16 PAC and charged as second offenses under Wis. Stat. § 346.65(2)(am) based on the 2011 conviction.
- The State introduced a certified DOT driving record showing the 2011 conviction; the expunged court file had been destroyed or sealed.
- Braunschweig moved to exclude the expunged conviction as a predicate and argued the prior must be proven beyond a reasonable doubt to the factfinder.
- The circuit court convicted him of second-offense OWI/PAC; the court of appeals affirmed. The Wisconsin Supreme Court granted review.
Issues
| Issue | State's Argument | Braunschweig's Argument | Held |
|---|---|---|---|
| Whether an expunged prior OWI conviction counts as a prior conviction under Wis. Stat. § 343.307(1) for OWI penalty enhancement | Expunged conviction may be counted if proven from non‑court records (e.g., certified DOT record); § 973.015 does not apply to DOT records | Expunction removes the conviction for predicate purposes; an expunged conviction should not be counted | Court held: An expunged conviction remains an "unvacated adjudication of guilt" and must be counted; DOT records may be used to prove it. |
| Standard of proof required to establish the prior conviction in a second‑offense OWI/PAC prosecution | Prior conviction is not an element of the offense; State need only prove it by a preponderance of the evidence (certified DOT record suffices) | Prior conviction is a status element that must be proved beyond a reasonable doubt (McAllister should be revisited) | Court held: Preponderance of the evidence is the proper standard where the prior is not an element; McAllister reaffirmed. |
Key Cases Cited
- State v. Leitner, 253 Wis. 2d 449 (Wis. 2002) (expunged court records cannot be used, but non‑court records may be considered)
- State v. McAllister, 107 Wis. 2d 532 (Wis. 1982) (prior convictions that are not elements may be proved by certified copies or other competent proof)
- State v. Allen, 373 Wis. 2d 98 (Wis. 2017) (clarifies that facts underlying an expunged conviction may be considered if obtained from non‑court sources)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (guidance on when facts that increase punishment must be treated as elements)
- Watts v. United States, 519 U.S. 148 (U.S. 1997) (preponderance standard at sentencing satisfies due process)