Attorney Sarah Schuchardt
Phone: 608-257-0945

The Wisconsin Supreme Court issued a unanimous ruling on December 21, 2018 in State of Wisconsin v. Justin A. Braunschweig, 2018 WI 113, that a prior expunged OWI must be counted when determining penalties for subsequent OWIs.  State of Wisconsin v. Justin A. Braunschweig, 2018 WI 113, ¶ 2.  The Court also ruled that prior OWI convictions must only be proved by the State by a preponderance of the evidence.  Id. ¶ 3.

Braunschweig was convicted in Jackson County Circuit Court of injuring another person by operation of a vehicle while intoxicated in 2011.  Id. ¶ 4.  The circuit court ordered the conviction expunged pursuant to Wis. Stat. § 973.015, which allows expunction for offenders under the age of 25 that were convicted of a crime for which the maximum period of imprisonment is six years or less.  Id. 

Five years later, on September 2, 2016, Braunschweig was arrested and subsequently charged with OWI and Operating with a PAC as second offenses.  Id. ¶ 5.  The State relied upon Braunschweig’s expunged 2011 conviction, which was documented in his Department of Transportation driving record.  Id.  Braunschweig filed a motion challenging the State’s reliance on his expunged conviction; he asserted that it no longer qualified as a predicate offense for purposes of charging him with a subsequent OWI or PAC offense.  Id. ¶ 6.  The circuit court ruled that an expunged conviction does count as a predicate offense.  Id.  Braunschweig also argued that the State must prove the prior OWI offense beyond a reasonable doubt.  Id. ¶ 7.  The circuit court also rejected this argument.  Id.  The case was then tried to the court and Braunschweig was convicted of both offenses and sentenced the same day.  Id.  

Braunschweig filed an appeal and the Court of Appeals affirmed the circuit court’s ruling in an unpublished opinion.  Id. ¶ 8; see also State of Wisconsin v. Justin A. Braunschweig, No. 2017AP1261-CR, unpublished slip op.  Braunschweig then filed a petition for review to the Supreme Court of Wisconsin on February 27, 2018, which was granted on June 11, 2018.  Braunschweig, 2018 WI at ¶ 8. 

Two issues were before the Supreme Court: (1) whether an expunged OWI conviction counts as a prior conviction under Wis. Stat. § 343.307(1) for purposes of determining penalties for OWI-related offenses; and (2) what burden the State must meet in proving a prior OWI conviction.  Id. ¶¶ 2-3. 

In deciding the first issue, the Court analyzed several statutes: Wis. Stat. § 340.01, Wis. Stat. § 973.015 and Wis. Stat. § 974.06(1).  Id. ¶¶ 18-20.  Wis. Stat. § 340.01 defines “conviction” as “an unvacated adjudication of guilt.”  Wis. Stat. § 340.01(9r).  The court then looked to the other two statutes in order to decide whether an expunged conviction is a vacated conviction. 

Wis. Stat. § 973.015, titled “Special Disposition,” allows a court to expunge the record of conviction at the time of sentencing if the offender successfully completes the sentence.[i]  If ordered, the clerk of court seals the case and destroys the records.  Wis. Stat. § 974.06 allows a defendant seeking postconviction relief to move the court to “vacate, set aside or correct the sentence.”  Wis. Stat. § 974.06(1); Braunschweig, 2018 WI at ¶ 20.  When comparing these statutes, the Court focused upon the definition and remedy of vacatur versus expunction and concluded that they were meant to accomplish different goals: “Vacatur invalidates the conviction itself, whereas expunction of a conviction merely deletes the evidence of the underlying conviction from court records.  Expunction, unlike vacatur, does not invalidate the conviction.”  Braunschweig, 2018 WI at ¶ 22.  Too, the Court noted that the expunction statute is “inapplicable to the DOT which is charged with the responsibility to maintain its own records.”  Id. ¶ 23.  The Court determined that “a conviction, even though expunged, remains an unvacated adjudication of guilt and thus, must be counted for purposes of supporting a prior conviction in OWI-related offenses.”  Id. ¶ 25 (internal quotations omitted).  The Court did note that the court record of an expunged conviction cannot be considered by sentencing courts or used for impeachment.  Id. ¶¶ 27-28; see also State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341.  However, use of non-court records regarding a conviction, such as a DOT record, are fair game for the State to use to establish a predicate offense for OWI-related offenses.  Braunschweig, 2018 WI at ¶¶ 26-31. 

The Court next addressed the second issue: what burden the State must meet in proving a prior OWI conviction.  The Court concluded that where the prior conviction is not an element of the offense, such as in second offense OWI cases, the State must only prove the prior offense by a preponderance of the evidence.  Id. ¶ 32.  Evidence of a prior conviction in cases where it is not an element of the crime is most important at sentencing, where the prior conviction may be used to increase the penalties.  Id. ¶ 37.  Proving the prior conviction by a preponderance of the evidence may be done by providing a certified DOT record at the time of sentencing.  Id. ¶ 40.  In contrast, where the prior offense is an element of the crime, the State still has the burden of proving each essential element of the crime beyond a reasonable doubt.  Id. ¶ 33.   

This decision serves as a warning both for practitioners and those with expunged OWI convictions: be aware that expunction does not eliminate the conviction from the DOT records, which may be used to increase OWI-related penalties for subsequent offenses. 


[i] Wis. Stat. 973.015 allows a court to order a conviction expunged if the maximum period of imprisonment for the crime is six years or less and if the offender is under 25 years old at the time the crime was committed.