It could become harder for drunken driving offenses to be removed from your past record after latest Wisconsin Supreme Court ruling

It may have just gotten harder for Wisconsin drunken drivers to knock old tickets and convictions out of the equation when scoring a new offense.

In a case involving the common tactic of "collateral attack" on prior cases, the Wisconsin Supreme Court on Wednesday ruled when old records aren't available, it's the driver's burden to prove their rights to have an attorney weren't adequately explained at the time, not prosecutors' burden to prove they were.

In Wisconsin, a first Operating While Intoxicated (OWI) charge is a non-criminal offense. Second and third offenses are misdemeanors and a fourth or subsequent charge is a felony, with escalating penalties. 

When someone facing a fourth or fifth OWI can have an earlier ticket or misdemeanor thrown out, it drops the new charge into misdemeanor territory, or can make new subsequent offenses get treated as non-criminal citations again.

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One way to do that is the "collateral attack." It seeks to have old convictions not count if a defendant has pleaded guilty or no contest without knowingly waiving their right to an attorney. A successful collateral attack does not remove the prior conviction, but does prevent it from being counted in calculating potential punishment for a current offense.

In July 2018, Teresa L. Clark, 49, was charged in Ashland County with a fourth OWI. She said she didn't have a lawyer when she pleaded guilty to her second and third offenses, in 1995 and 2002, and that judges didn't properly warn her about the risks of proceeding without one. 

Under document retention rules, the 1995 records had been destroyed after 20 years. No transcripts were available from 2002 because the court reporter's notes were destroyed after 10 years.

The few documents from the 2002 file indicated Clark was appearing without a lawyer and had been advised of her rights to have one. 

She insisted her rights had not been fully explained, and so didn't knowingly waive them. The judge — though skeptical — granted the collateral attack because the state could not refute her claim. 

Clark was suddenly facing only first offense charges again. That's because in Wisconsin, the count starts over after 10 years.

A second offense couldn't be pursued against Clark because the collateral attack rendered the 1994 case too old to be considered her first violation. The 1994 offense could have been counted if the 2018 case was in fact a fourth offense.

Prosecutors appealed to the Supreme Court. 

Writing for the majority, Justice Brian Hagedorn pointed out that if a defendant can identify a flaw in her plea hearing, the burden shifts to prosecutors to prove the defendant knowingly waived her right to a lawyer.

But when no transcript is available, Hagedorn wrote, the default standard applies. That says that after judgment is entered, convictions are "afforded a 'presumption of regularity' and the defendant faces a heavy burden" to overcome it.

Justices Rebecca Bradley, Patience Roggensack and Chief Justice Annette Ziegler joined Hagedorn's opinion.

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Justice Ann Walsh Bradley (no relation to Rebecca Bradley) dissented.

The majority, she wrote, over values the presumption of regularity granted to judgments, while discounting another legal presumption — that defendants don't give up their rights to a lawyer.

She says the majority leaves defendants in the same "untenable position" the majority sees for prosecutors under the current rule. The missing transcripts are neither side's fault, but merely the result of what Bradley says are likely outdated practices, given today's nearly limitless digital storage capacity.

"A defendant should not be made to bear the burden of a problem created by document retention rules, and a defendant's testimony should not be immediately discounted just because the usual procedure would be too difficult for the State," she wrote.

Justices Rebecca Dallet and Jill Karofsky joined the dissent.

Clark's case returns to circuit court for a hearing. She then would be able to again try to show she did not knowingly accept her 1995 and 2002 convictions because she had no lawyer and she was nfully advised about the risk of proceeding without one.

Contact Bruce Vielmetti at (414) 224-2187 or bvielmetti@jrn.com. Follow him on Twitter at @ProofHearsay.