By: Attorney David E. Saperstein & Law Clerk Sarah E. Schuchardt
Prior OWI convictions are not elements of subsequent OWI offenses; however, these prior convictions are used at sentencing in order to determine the penalties for the present offense. The State has the burden of proving convictions for prior OWI offenses beyond a reasonable doubt. Typically, the prosecution meets this burden by producing a certified driving record abstract from the Department of Transportation (DOT), or a certified judgment of conviction from the court where the prior conviction(s) occurred.
The evidentiary question in State v. Ambroziak was whether, absent a certified driving record or judgment of conviction, other documents could satisfy the State’s burden of proof. In Ambroziak, the State provided three documents, none of which were a certified driving record or judgment of conviction. The State provided — (1) a printed record of events from Wisconsin’s Circuit Court Access Program (CCAP), (2) an uncertified DOT driving record abstract, and (3) a Court of Appeals opinion affirming his prior adjudication — to prove the existence of Ambroziak’s prior implied consent violation (implied consent violations, also called “refusals,” are counted as OWI’s for purposes of sentencing). State v. Ambroziak, 2017AP22-CR, 2017 WL 4158731, ¶ 10 (unpublished). Mr. Ambroziak argued that the combination of those records, taken in their totality, were still insufficient to prove his prior offense, and that his second offense OWI conviction should, therefore, be reversed.
The Court of Appeals disagreed, and ruled that these documents, when considered in their totality, did constitute sufficient proof of the prior countable offense. Id. at ¶¶ 9-10. Although the CCAP entry alone would not have been enough to prove the prior conviction, the Court found that the “totality of the evidence” satisfied the State’s burden of proof. Id. at ¶ 9. The DOT driving record showed that Ambroziak had a judgment of conviction (adjudication) for a refusal, but that an appeal was pending. Id. at ¶ 10. However, the Court of Appeals opinion on that refusal adjudication showed that the appeal had been resolved, and the refusal judgment affirmed. Id. Further, the CCAP record of events, although insufficient proof by themselves, did add additional substantiation of the DOT record and the Court of Appeals opinion. Id. The Court of Appeals found that “those documents, together, constitute ‘other competent proof’ establishing that Ambroziak had been convicted of the prior implied consent violation beyond a reasonable doubt.” Id. Also of note, the Court took into account the fact that both Ambroziak and his attorney acknowledged at his second offense OWI sentencing that Ambroziak had a prior refusal. Id. at ¶ 11.
State v. Ambroziak is unpublished opinion, which means that it cannot be cited as precedential authority. Still, any time a court ruling dilutes the State’s burden of proof by expanding the ways the State may meet that burden, it raises concerns for defendants and defense lawyers.