To attack or not to attack….that is the question!
In drunk driving cases in Wisconsin, a person charged with their 2nd or subsequent offense has the opportunity to challenge the validity of prior convictions in their current matter. The only situation a defendant can challenge a previous conviction is when they were not represented by an attorney on the previous matter. If a defendant was not represented on a previous matter, then a defendant can challenge, or collaterally attack, the validity of their plea. This right to counsel guaranteed by the US and Wisconsin state constitution only applies in criminal offenses. That means a defendant is out of luck if they pled to a first offense drunk driving in Wisconsin, as that is not a criminal matter. However, every other state makes a first offense a crime, even if all the defendant had to do was pay a fine.
If records of the previous proceedings exist, then the court will look to the record to determine whether or not the judge in the previous case made the defendant aware of their right to an attorney, the advantages and disadvantages of proceeding with or without and attorney, the range of penalties, the seriousness of the offense and there needs to be a finding that the defendant knowingly, intelligently and voluntarily made their pleas and waived the right to an attorney.
Many times, records are destroyed after 5-10 years, depending on the jurisdiction. If no record exists after diligent inquiry, then the defendant submits an affidavit setting forth what they recall from the previous hearing as it pertains to their right to an attorney. Once the claim is made, it is up to the prosecutor to call the defendant to the stand and attempt to determine what the defendant knew at the time the previous hearing occurred, which could have been many years ago. In short, it is very, very difficult for the state to prove a valid waiver occurred without adequate court records.
A successful collateral attack can mean the difference of litigating a felony case versus a misdemeanor, or even amending a misdemeanor case to a civil forfeiture. It could mean the difference between serving 90 days in jail versus 10 days, over a couple of weekends. If you or someone you know is facing this type of situation, please contact Attorney Andrew Nelson at 715-381-8270 for a free initial consultation. Always remember: be safe, don’t drink and drive.