State v. Justin A. Braunschweig

2018 WI 113

SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1261-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Justin A. Braunschweig,
Defendant-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 380 Wis. 2d 511, 913 N.W.2d 516
(2018 – unpublished)

OPINION FILED: December 21, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: Randy R. Koschnick

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs
filed by Michael C. Witt and Criminal Defense & Civil
Litigation, LLC, Jefferson. There was an oral argument by
Michael C. Witt.

For the plaintiff-respondent, there was a brief filed by
Sopen B. Shah, deputy solicitor general, with whom on the brief
was Brad D. Schimel, attorney general, and Ryan J. Walsh, chief
deputy solicitor general. There was an oral argument by Sopen B.
Shah.
 2018 WI 113
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1261-CR
(L.C. No. 2016CT412)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED
v. DEC 21, 2018
Justin A. Braunschweig, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals,1 State v. Justin A.

Braunschweig, No. 2017AP1261-CR, unpublished slip op. (Wis. Ct.
App. Feb. 1, 2018), affirming the Jefferson County circuit

court's2 judgment of conviction of defendant Justin A.

1
This appeal was decided by one judge pursuant to Wis.
Stat. § 752.31(2)(f) (2015-16). All subsequent references to
the Wisconsin Statutes are to the 2015-16 version unless
otherwise indicated.
2
The Honorable Randy R. Koschnick presided.
 No. 2017AP1261-CR

Braunschweig ("Braunschweig") for Operating While Intoxicated

("OWI") as a second offense.3

¶2 The court is now presented with two overriding issues.

First, we consider whether a prior expunged OWI conviction

constitutes a prior conviction under Wis. Stat. § 343.307(1),

when determining the penalty for OWI-related offenses.4 We

conclude that a prior expunged OWI conviction must be counted

under § 343.307(1).

¶3 Second, we consider the State's burden of proving the

prior OWI conviction in second offense OWI-related offenses. We

conclude that the State must prove this prior OWI conviction,

which is not here an element of the offense charged, by a

preponderance of the evidence. Thus, we affirm the court of

appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 In 2011 Braunschweig was convicted of injuring another

person by operation of a vehicle while intoxicated, contrary to

3
Braunschweig was convicted of both an OWI count and a
prohibited alcohol concentration ("PAC") count, each as a second
offense, and the court imposed sentence on only the OWI second
offense count pursuant to Wis. Stat. § 346.63(1)(c).
4
"OWI-related offenses" have been referred to as "drunk
driving" offenses in prior opinions by this court. See, e.g.,
State v. Kozel, 2017 WI 3, ¶¶1-2, 373 Wis. 2d 1, 889 N.W.2d 423.
Here, "OWI-related offenses" concerns those offenses referenced
above in footnote 3. In prior opinions, this court has
sometimes referred to these offenses as "drunk driving"
offenses.

2
 No. 2017AP1261-CR

Wis. Stat. § 346.63(2)(a)1. (2011-12)5 ("2011 conviction"). It

is undisputed that the Jackson County circuit court ordered

expunction of Braunschweig's 2011 conviction under Wis. Stat.

§ 973.015, the Expunction Statute.6 The propriety of that

5
Wisconsin Stat. § 346.63 (2011-12), "Operating under
influence of intoxicant or other drug," in relevant part,
provided:

(2) (a) It is unlawful for any person to cause
injury to another person by the operation of a vehicle
while:

1. Under the influence of an intoxicant, a
controlled substance, a controlled substance analog or
any combination of an intoxicant, a controlled
substance and a controlled substance analog, under the
influence of any other drug to a degree which renders
him or her incapable of safely driving, or under the
combined influence of an intoxicant and any other drug
to a degree which renders him or her incapable of
safely driving.

§ 346.63(2)(a)1. (2011-12).
6
Wisconsin Stat. § 973.015 provides, in relevant part:

[W]hen a person is under the age of 25 at the time of
the commission of an offense for which the person has
been found guilty in a court for violation of a law
for which the maximum period of imprisonment is 6
years or less, the court may order at the time of
sentencing that the record be expunged upon successful
completion of the sentence if the court determines the
person will benefit and society will not be harmed by
this disposition. This subsection does not apply to
information maintained by the department of
transportation regarding a conviction that is required
to be included in a record kept under s. 343.23(2)(a).

(continued)
3
 No. 2017AP1261-CR

decision——to order expunction——is not at issue in this case.

Rather, this court is called upon to consider whether an

expunged conviction is considered a predicate offense and what

burden of proof must the State meet to establish this prior

offense.

¶5 On September 2, 2016, nearly five years after his 2011

conviction, Braunschweig was arrested for driving while

intoxicated with a PAC of .16. Braunschweig was subsequently

charged with criminal misdemeanor offenses: one count of OWI,

contrary to Wis. Stat. § 346.63(1)(a), and one count of

operating with a PAC, contrary to § 346.63(1)(b), both as second

offenses, see Wis. Stat. § 346.65(2)(am)2. The State relied on

Braunschweig's expunged 2011 conviction as the prior predicate

offense under Wis. Stat. § 343.307(1) in order to charge him

with second offenses, making them criminal instead of civil.7

The State submitted a certified copy of Braunschweig's

Department of Transportation ("DOT") driving record to establish

the prior conviction.
¶6 Before trial, Braunschweig filed a motion challenging

the State's use of the 2011 conviction as a predicate offense

§ 973.015(1m)(a)1. In 2013 the legislature revised Wis. Stat.
§ 973.015. See 2013 Wis. Act 362, §§ 48-50. The revisions were
unrelated to the statute's language we quote in this opinion.
For the sake of consistency, we refer only to the 2015-16
version.
7
Wisconsin Stat. § 346.65(2)(am) makes the first offense
for OWI or PAC a civil offense, but OWI and PAC offenses become
criminal as second offenses.

4
 No. 2017AP1261-CR

under Wis. Stat. § 343.307(1), because the 2011 conviction was

expunged. Braunschweig argued that once the 2011 conviction was

expunged by the circuit court, it no longer qualified as a

predicate offense in second offense OWI and PAC cases. The

circuit court ruled against him. Braunschweig then waived his

right to a jury trial and the matter was tried to the court.

¶7 Before trial, Braunschweig argued that the existence

of at least one prior conviction is a status element in a second

offense case, and that absent a stipulation, the prior OWI must

be proven beyond a reasonable doubt to the trier of fact. The

circuit court rejected this argument. Braunschweig was

convicted of both counts and was sentenced the same day. The

circuit court stayed his sentence pending appeal.

¶8 Braunschweig filed a notice of appeal and the court of

appeals affirmed the circuit court. Braunschweig, No.

2017AP1261-CR, unpublished slip op. On February 27, 2018,

Braunschweig filed a petition for review in this court. On

June 11, 2018, we granted the petition.
II. STANDARD OF REVIEW

¶9 "The interpretation and application of a statute

present questions of law that this court reviews de novo while

benefitting from the analyses of the court of appeals and

circuit court." State v. Alger, 2015 WI 3, ¶21, 360

Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler, 2012 WI

73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238). Thus, we review de

novo whether an expunged conviction must be counted as a

5
 No. 2017AP1261-CR

conviction under Wis. Stat. § 343.307(1), and therefore, serve

as a predicate offense under Wis. Stat. § 346.65(2)(am).

¶10 Similarly, the "[d]etermination of the appropriate

burden of proof in this case presents a question of statutory

interpretation." Shaw v. Leatherberry, 2005 WI 163, ¶17, 286

Wis. 2d 380, 706 N.W.2d 299. Thus, we also review de novo what

burden of proof the State must meet in order to prove the prior

conviction's existence.

¶11 Furthermore, this case requires the interpretation of

our prior case law. "[S]tare decisis concerns are paramount

where a court has authoritatively interpreted a statute because

the legislature remains free to alter its construction."

Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶45, 281

Wis. 2d 300, 697 N.W.2d 417 (citing Hilton v. S.C. Pub. Rys.

Comm'n, 502 U.S. 197, 202 (1991)). "When a party asks this

court to overturn a prior interpretation of a statute, it is his

'burden . . . to show not only that [the decision] was mistaken

but also that it was objectively wrong, so that the court has a
compelling reason to overrule it.'" Id.

III. ANALYSIS

A. Statutory Interpretation

¶12 We begin our analysis with a review of the language of

the statutes. State ex rel. Kalal v. Circuit Court for Dane

Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. "[T]he

purpose of statutory interpretation is to determine what the

statute means so that it may be given its full, proper, and
intended effect." Id., ¶44. If the meaning of the statute is
6
 No. 2017AP1261-CR

plain, we ordinarily stop the inquiry and give the language its

"common, ordinary, and accepted meaning, except that technical

or specially-defined words or phrases are given their technical

or special definitional meaning." Id., ¶45.

¶13 Context and structure of a statute are important to

the meaning of the statute. Id., ¶46. "Therefore, statutory

language is interpreted in the context in which it is used; not

in isolation but as part of a whole; in relation to the language

of surrounding or closely-related statutes; and reasonably, to

avoid absurd or unreasonable results." Id. Moreover, the

"[s]tatutory language is read where possible to give reasonable

effect to every word, in order to avoid surplusage." Id. "A

statute's purpose or scope may be readily apparent from its

plain language or its relationship to surrounding or closely-

related statutes——that is, from its context or the structure of

the statute as a coherent whole." Id., ¶49.

¶14 "If this process of analysis yields a plain, clear

statutory meaning, then there is no ambiguity, and the statute
is applied according to this ascertainment of its meaning."

Id., ¶46. If statutory language is unambiguous, we do not need

to consult extrinsic sources of interpretation. Id. "Statutory

interpretation involves the ascertainment of meaning, not a

search for ambiguity." Id., ¶47.

1. OWI-related statutes

7
 No. 2017AP1261-CR

¶15 Wisconsin Statutes govern OWI-related offenses.

Unique to Wisconsin, a first offense is deemed to be a civil,

not a criminal offense.8 The legislature has instituted criminal

penalties for repeat offenses. See Wis. Stat. § 346.65(2)(am);

see also Wis. Stat. § 343.307(1). These statutes generally

embody a system of increased penalties depending on the number

of offenses and after the offenses increase to a certain number,

the permissible alcohol concentration allowable for a repeat

offender decreases significantly. § 346.65(2)(am); see also

§ 343.307(2).9 As a result, while the State must prove certain

elements in certain repeat OWI-related offenses beyond a

reasonable doubt, we confine our analysis to the statutes as

they pertain to a second offense with which Braunschweig finds

himself charged and convicted.10 We now turn our analysis to the

relevant statutes at issue in this case.

8
See Wis. Stat. § 346.65(2)(am)1. See also, Bill Leuders,
Under the Influence: Why Wisconsin Has Weak Laws on Drunken
Driving, Urban Milwaukee (Nov. 10, 2014),
https://urbanmilwaukee.com/2014/11/10/under-the-influence-why-
wisconsin-has-weak-laws-on-drunken-driving; Nina Kravinsky,
Wisconsin DUI policies lag behind other states' in severity,
Badger Herald (Dec. 4, 2014), https://perma.cc/E3HZ-X768. If a
defendant, however, has at least one prior relevant offense, the
OWI becomes a criminal offense. See § 346.65(2)(am)2.
9
The Wisconsin Statutes also enhance penalties for other
reasons not pertinent to our analysis. See, e.g., Wis. Stat.
§ 346.65(2)(f) (passengers under age 16).
10
Compare Wis. Stat. § 340.01(46m); Wis JI-Criminal 2600,
at 11-13 (2011) ("Operating While Intoxicated: Introductory
Comment . . . V. D. Operating With a [PAC]. PAC level and
penalties for third and subsequent offenses"); id., at 13-16
("VI. Prior Offenses . . . an Element of the 0.02 Offense")
(continued)
8
 No. 2017AP1261-CR

¶16 Wisconsin Stat. § 346.63(1) states "No person may

drive or operate a motor vehicle while . . . [u]nder the

influence of an intoxicant," § 346.63(1)(a), or with a

"prohibited alcohol concentration," § 346.63(1)(b). Convictions

of both, as was the case here, count as only one conviction for

purposes of Wis. Stat. § 346.65(2)(am), the OWI/PAC penalty

enhancement statute. See § 346.63(1)(c) ("A person may be

charged with and a prosecutor may proceed upon a complaint based

upon a violation of any combination of par. (a), (am), or (b)"

and "[i]f the person is found guilty of any combination of par.

(a), (am), or (b) . . . there shall be a single conviction.").

¶17 The OWI/PAC penalty enhancement statute at issue here

provides for increased minimum and maximum potential penalties

for defendants convicted of OWIs based upon a delineated list of

prior "suspensions, revocations, and other convictions." Wis.

Stat. § 346.65(2)(am). The penalties are increased for a

defendant who has a prior "conviction[] counted under

s. 343.307(1)," § 346.65(2)(am)2., which includes "[c]onvictions
for violations under s. 346.63(1) [and] . . . under

s. 346.63(2)." Wis. Stat. § 343.307(1)(a), (1)(c). There is no

meaningful debate that Braunschweig's 2011 conviction, if not

expunged, would be deemed a prior counted conviction under this

with Wis JI-Criminal 2660C (2007) ("Operating A Motor Vehicle
with a [PAC]-Criminal Offense-More than 0.02 grams-
§ 346.63(1)(b)") and Wis JI-Criminal 2663 (2006) ("Operating a
Motor Vehicle While Under the Influence of an Intoxicant-
Criminal Offense-§ 346.63(1)(a)").

9
 No. 2017AP1261-CR

section. The issue is whether that prior expunged conviction

counts as a prior predicate offense. As a result, we turn to

the words of the statute as defined.

¶18 Wisconsin Stat. § 340.01 defines "words and phrases"

that appear in Chapter 346. Section 340.01(9r) defines

"Conviction" as "an unvacated adjudication of guilt." Hence, we

next consider whether an expunged "conviction" is an "unvacated

adjudication of guilt."

2. Expunction and vacatur

¶19 Wisconsin Stat. § 973.015, entitled "Special

Disposition," governs expunction in Wisconsin, and grants courts

the discretionary authority to expunge an offender's conviction

for a crime for which the maximum period of imprisonment is six

years or less if that offender is under 25 years of age at the

time the crime was committed.11 "The court may order at the time

of sentencing that the record be expunged upon successful

completion of the sentence if the court determines the person

will benefit and society will not be harmed by this
disposition." § 973.015(1m)(a)(1). "Upon successful completion

of the sentence the detaining or probationary authority shall

issue a certificate of discharge which shall be forwarded to the

court of record and which shall have the effect of expunging the

record." § 973.015(1m)(b) (emphasis added). Thus, when

expunction is ordered, the clerk of court seals the case and

11
Other statutes may use the term expunction but are not
pertinent to our analysis. See, e.g., Wis. Stat. § 938.355(4m).

10
 No. 2017AP1261-CR

destroys the court records. State v. Allen, 2017 WI 7, ¶9 &

n.3, 373 Wis. 2d 98, 890 N.W.2d 245.

¶20 In contrast, Wisconsin Stat. 974.06(1) instructs that

a defendant seeking postconviction relief "may move the court

which imposed the sentence to vacate, set aside or correct the

sentence." A court "shall vacate and set the judgment aside" if

the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not
authorized by law or is otherwise open to collateral
attack, or that there has been such a denial or
infringement of the constitutional rights of the
person as to render the judgment vulnerable to
collateral attack.
§ 974.06(3)(d). Such relief, however, is designed to address

such defects with respect to the conviction or the sentence

imposed, not to provide a second chance or a fresh start as is

intended by the expunction statute. State v. Hemp, 2014 WI 129,

¶¶19, 20, 359 Wis. 2d 320, 856 N.W.2d 811.

¶21 Vacatur, unlike expunction, removes the fact of

conviction. See State v. Lamar, 2011 WI 50, ¶¶39–40 & n.10

(stating that when a judgment has been vacated, "the matter

stands precisely as if there had been no judgment," and that

vacating a judgment renders it "nullified and no longer in

effect"). A vacated conviction, unlike expunction, does not

result in a court record being hidden from public view nor are

court records destroyed because of a vacated conviction. See

SCRs 72.01 and 72.06. To "vacate" has been defined generally as

"[t]o nullify or cancel; make void; invalidate." Vacate,

11
 No. 2017AP1261-CR

Black's Law Dictionary 1782 (10th ed. 2014) (employing "the

court vacated the judgment" as an exemplary use of the term).

¶22 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.

¶23 Notably, Wis. Stat. § 973.015(1m), the Expunction

Statute, references that it is inapplicable to the DOT which is

charged with the responsibility to maintain its own records.

The Expunction Statute specifically states, "This subsection

does not apply to information maintained by the department of

transportation regarding a conviction." § 973.015(1m). Thus,

the legislature specifically acknowledged the separate and

distinct responsibility for recordkeeping in the executive

branch as opposed to that in the judicial branch.

¶24 The next section of the Expunction Statute provides

additional confirmation that the legislature deemed vacatur and

expunction to be distinct court actions. Wisconsin Stat.
§ 973.015(2m)12 states the court "may . . . vacate the

conviction . . . or may order that the record of the

violation . . . be expunged." The legislature's use of the

terms "vacate the conviction" or "order the record . . . be

expunged" in the disjunctive demonstrates the legislature's

decision to distinguish vacatur from expunction as two

12
This statute is limited in its application to "a victim
of trafficking for the purposes of a commercial sex act . . . ."

12
 No. 2017AP1261-CR

alternative, independent options. See Milewski v. Town of

Dover, 2017 WI 79, ¶50, 377 Wis. 2d 38, 899 N.W.2d 303 (deciding

that the use of the word "or" in a list created alternative

options); see also Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 116 (2012) ("Under the

conjunctive/disjunctive canon, and combines items while or

creates alternatives."). If "vacat[ing] . . . the conviction"

and "order[ing] that the record of the violation . . . be

expunged" are to have the same meaning, one of options would be

rendered mere surplusage. See Milewski, 377 Wis. 2d 38, ¶50

n.21 ("[I]f the second option really means nothing more than the

first, then the legislature acted frivolously when it added that

option to the statute. We try not to treat legislative

enactments as surplusage." (citation omitted)); Scalia & Garner,

supra at 174-79 (footnote omitted) ("If possible, every word and

every provision is to be given effect (verba cum effectu sunt

accipienda). None should be ignored. None should needlessly be

given an interpretation that causes it to duplicate another
provision or to have no consequence."). Here, the use of

vacatur and expunction as distinct alternative options confirms

the legislature's unambiguous determination that a vacated

adjudication of guilt, is not the same as an expunged

conviction.

¶25 In sum, while the expunction of court records of a

conviction is intended to benefit a young offender, one of the

benefits is not that the underlying conviction is vacated.
Therefore, under a plain meaning analysis, a conviction, even
13
 No. 2017AP1261-CR

though expunged, remains "an unvacated adjudication of guilt"

and thus, must be counted for purposes of supporting a prior

conviction in OWI-related offenses.

3. State v. Leitner

¶26 We now examine whether our statutory analysis is at

odds with State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646

N.W.2d 341. Braunschweig argues that Leitner prohibits an

expunged conviction from being considered, even if the

conviction is certified in a DOT record. We disagree and

conclude that the plain language interpretation of the statute

is consistent with this court's past precedent, including

Leitner.

¶27 In Leitner, this court determined that the "court

records of expunged convictions cannot be considered by

sentencing courts," including for "repeater sentence

enhancement." 253 Wis. 2d 449, ¶¶39, 44 (emphasis added); see

id., ¶39 ("An expunged record of a conviction cannot be

considered at a subsequent sentencing; an expunged record of a
conviction cannot be used for impeachment at trial under [Wis.

Stat.] § 906.09(1); and an expunged record of a conviction is

not available for repeater sentence enhancement.").

¶28 However, Leitner explicitly contemplated use of other

non-court records of prior convictions whose court records had

subsequently been expunged for repeater sentence enhancement.

Id., ¶40. Specifically, the court stated:

Furthermore, district attorneys and law
enforcement agencies have significant ongoing

14
 No. 2017AP1261-CR

interests in maintaining case information, even when a
court record of a conviction has been expunged under
Wis. Stat. § 973.015. Case information may assist in
identifying suspects, determining whether a suspect
might present a threat to officer safety,
investigating and solving similar crimes, anticipating
and disrupting future criminal actions, informing
decisions about arrest or pressing charges, making
decisions about bail and pre-trial release, making
decisions about repeater charges, and making
recommendations about sentencing.
Id. (emphasis added).

¶29 Further, this court has since clarified that Leitner's

holding does not stand for the proposition that a DOT record of

conviction is precluded from use. In Allen, this court stated:

As discussed in Leitner, expunction requires the
destruction of the court record of conviction. It is
the court record, with all of its contents, which
cannot be considered at a subsequent sentencing. The
facts underlying an expunged record of conviction, if
obtained from a source other than a court record, may
be considered at sentencing.
Allen, 373 Wis. 2d 98, ¶41.

¶30 As a result, Leitner does not lend support to

Braunschweig's cause. A certified DOT record is a "source other

than a court record" that may be considered to prove the

predicate expunged offense. While Wis. Stat. § 973.015 may

allow the expunction of court records, the statute explicitly

says it does not apply to DOT records. See § 973.015(1m)(a).

Further, nothing in the DOT's grant of authority to maintain the

records prevents them from being used in this fashion. The

15
 No. 2017AP1261-CR

enumerated purposes13 do not provide an exclusive list. It is

instead additional support for the fact that the DOT was

required to keep such records regardless of their expunction.

¶31 In sum, the plain meaning of the statutes and our

prior precedent both dictate that a certified DOT record which

contains an expunged conviction can establish a predicate

offense for purposes of OWI-related offenses.

B. Prior Convictions Must Be Proven By A Preponderance
Of The Evidence.
¶32 We last turn to the question of the burden of proof

the State must meet in proving a prior conviction in a second

offense OWI-related case. Wisconsin Stat. § 346.65 does not

provide a standard of proof for the penalties assigned. See

13
Wisconsin Stat. §§ 343.23 and 343.24 designate some uses
of the records. For instance, § 343.23, in relevant part,
provides:

The information specified in pars. (a) and (am) must
be filed by the department so that the complete
operator's record is available for the use of the
secretary in determining whether operating privileges
of such person shall be suspended, revoked, canceled,
or withheld, or the person disqualified, in the
interest of public safety.

§ 343.23(2)(b). Another example is in § 343.24, which provides:

The department shall upon request furnish any person
an abstract of the operating record of any person.
The abstract shall be certified if certification is
requested. Such abstract is not admissible in
evidence in any action for damages arising out of a
motor vehicle accident.

§ 343.24(1).

16
 No. 2017AP1261-CR

Carlson & Erickson Builders, Inc. v. Lampert Yards, Inc., 190

Wis. 2d 650, 658 n.6, 529 N.W.2d 905 (1995) ("Where Congress has

not prescribed the appropriate standard of proof and the

Constitution does not dictate a particular standard, we must

prescribe one." (quoting Herman & MacLean v. Huddleston, 459

U.S. 375, 389 (1983)). Braunschweig argues that proof of

predicate priors in both OWI and PAC cases must be proven beyond

a reasonable doubt. He argues that the holding in State v.

McAllister, 107 Wis. 2d 532, 319 N.W.2d 865 (1982), that a

predicate prior is not an element the State has to prove beyond

a reasonable doubt, is ripe for reconsideration. On the other

hand, the State argues that a prior conviction is not here an

element of the OWI/PAC penalty enhancement statute and thus, the

appropriate burden of proof is the preponderance of the

evidence. We conclude that the appropriate burden of proof here

is preponderance of the evidence, and that the State met its

burden in this case by introducing the certified DOT record.14

¶33 Almost 40 years ago in McAllister, this court
concluded that the State may prove prior convictions through

"certified copies of conviction or other competent proof" when

14
The holding that preponderance of the evidence is the
burden of proof applies only when the prior convictions are not
an element of the offense, such as in second offense OWI cases,
but not so when the prior convictions become an element of the
offense as in some PAC cases where the prior convictions lower
the "[p]rohibited alcohol concentration." See Wis. Stat.
§ 340.01(46m)(c); see also State v. Alexander, 214 Wis. 2d 628,
640–41, 571 N.W.2d 662 (1997).

17
 No. 2017AP1261-CR

proof of a prior is not an element of the offense. 107 Wis. 2d

at 539; State v. Saunders, 2002 WI 107, ¶32, 255 Wis. 2d 589,

649 N.W.2d 263. Braunschweig argues that substantial changes in

the law since McAllister, however, militate in favor of

overturning the decision. We disagree, reaffirm McAllister, and

conclude that when a predicate prior offense is not, as here, an

element that must be proven beyond a reasonable doubt, it need

be proven by only a preponderance of the evidence. See

McAllister, 107 Wis. 2d at 533 ("Unquestionably, the state has

the burden of proving each essential element of a crime charged

beyond a reasonable doubt.").

¶34 Wisconsin's statutes for OWI-related offenses impose

increased penalties for repeat offenders. Competent proof of

the prior conviction primarily concerns sentencing as it impacts

the penalty that can be imposed and here, is not an element of

the offense to be proven. The elements of a second offense OWI

are:

1. The defendant (drove) (operated) a motor
vehicle on a highway. . . .

2. The defendant was under the influence of an
intoxicant at the time the defendant (drove)
(operated) a motor vehicle.
Wis. JI-Criminal 2669, at 2 (2015); see Wis. Stat.

§ 346.63(1)(a). The elements of a second offense PAC are:

1. The defendant (drove) (operated) a motor
vehicle on a highway.

2. The defendant had a prohibited alcohol
concentration at the time the defendant (drove)
(operated) a motor vehicle.

18
 No. 2017AP1261-CR

"Prohibited alcohol concentration" means .08
grams or more of alcohol in 210 liters of the person's
breath.
Wis. JI-Criminal 2669, at 3 (2015); see § 346.63(1)(b); see also

Wis. Stat. § 340.01(1v)(b), (46m)(a). In neither of these

crimes is the prior offense an element.

¶35 In McAllister, this court stated:

The legislative directive concerning the law of
repeater and penalty enhancers is clear and has been
upheld by this court. The application and impact of
such provisions has been repeatedly defined.
Consistent with this development of the law, we hold
that the fact of a prior violation, civil or criminal,
is not an element of the crime of [OWI] either in the
ordinary sense of the meaning of the word element,
i.e., the incidents of conduct giving rise to the
prosecution, or in the constitutional sense.
McAllister, 107 Wis. 2d at 538.15 "An indictment . . . need not

set forth factors relevant only to the sentencing of an offender

15
"This court follows the doctrine of stare decisis
scrupulously because of our abiding respect for the rule of
law." State v. Luedtke, 2015 WI 42, ¶40, 362 Wis. 2d 1, 863
N.W.2d 592 (quoting Johnson Controls, Inc. v. Emp'rs Ins. of
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257);
Hilton v. S.C. Public Rys. Comm'n, 502 U.S. 197, 202 (1991)
("Time and time again, this Court has recognized that 'the
doctrine of stare decisis is of fundamental importance to the
rule of law.'" (quoting Welch v. Texas Dep't of Highways and
Public Transp., 483 U.S. 468, 494 (1987) (plurality opinion))).
"[A]ny departure from the doctrine of stare decisis demands
special justification." Johnson Controls, 264 Wis. 2d 60, ¶94
(quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19,
653 N.W.2d 266).

(continued)
19
 No. 2017AP1261-CR

found guilty of the charged crime." See, e.g., Almendarez-

Torres v. United States, 523 U.S. 224, 228, 243-44 (1998).

¶36 Braunschweig asserts that the law has changed

significantly since McAllister, so to undermine its conclusions.

As support, he refers to the creation of the PAC charge under

Wis. Stat. § 346.63,16 including some PAC offenses wherein the

predicate prior is an element of the offense, the fact that OWIs

and PACs are often charged together, see § 346.63(1)(c), as well

as that these are serious offenses with serious penalties noting

that some such offenses are now felonies. See Wis. Stat.

§ 346.65(2)(am)4. The changes in the law that Braunschweig

highlights,17 however, do not warrant overturning McAllister as

they do not "undermin[e] the rationale behind [the] decision."

We recognize that stare decisis, is a "'principle of
policy' rather than 'an inexorable command.'" Hohn v. United
States, 524 U.S. 236, 251 (1998) (quoting Payne v. Tennessee,
501 U.S. 808, 828 (1991)). One circumstance that can "satisfy
the demanding standards for departing from precedent" is
"changes or developments in the law [that] have undermined the
rationale behind a decision." Johnson Controls, 264 Wis. 2d 60,
¶98.
16
Wisconsin Stat. § 346.63, in relevant part, provides that
"[n]o person may drive or operate a motor vehicle while . . . [t]he
person has a prohibited alcohol concentration." § 346.63(1)(b).
17
In this case, increased potential punishment because of
this expunged prior does not transform the predicate offense
into an element as "[b]oth the certainty that procedural
safeguards attached to any 'fact' of prior conviction, and the
reality that [Braunschweig] did not challenge the accuracy of
that 'fact' in his case, mitigated the due process and Sixth
Amendment concerns otherwise implicated in allowing a judge to
determine a 'fact' increasing punishment." See Apprendi v. New
Jersey, 530 U.S. 466, 488 (2000).

20
 No. 2017AP1261-CR

See Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI

108, ¶98, 264 Wis. 2d 60, 665 N.W.2d 257. We acknowledge that

in some PAC cases the predicate prior will be an element of the

crime, but that is not the case before this court.18

¶37 The United States Supreme Court has provided guidance

with regard to what burden of proof satisfies competent proof of

a predicate conviction. In this case, the prior offense

pertains in large part to the penalty at sentencing. The

Supreme Court has "held that application of the preponderance

standard at sentencing generally satisfies due process." United

States v. Watts, 519 U.S. 148, 156 (1997). In McMillan v.

Pennsylvania, the Court had "little difficulty concluding that

in this case the preponderance standard satisfies due process"

after determining "that States may treat 'visible possession of

a firearm' as a sentencing consideration rather than an element

of a particular offense." 477 U.S. 79, 91 (1986).

¶38 In line with the United States Supreme Court, numerous

federal circuits have consistently applied a preponderance of
the evidence standard at sentencing. See, e.g., United States

v. Lacouture, 835 F.3d 187, 189–90 (1st Cir. 2016) ("It is the

government's burden at sentencing to prove sentencing

18
As noted, this standard does not apply when the prior
conviction defines part of the offense, as in some PAC
circumstances. Given the Wisconsin Statutes regarding PAC
cases, courts may nonetheless decide to make a record of whether
the burden of proof meets the beyond a reasonable doubt
standard, although it is not required as the preponderance of
the evidence standard applies.

21
 No. 2017AP1261-CR

enhancement factors by a preponderance of the

evidence . . . ."); United States v. Romans, 823 F.3d 299, 316

(5th Cir. 2016) ("In general, facts relevant to sentencing need

only be proved by a preponderance of the evidence."); United

States v. Mustafa, 695 F.3d 860, 862 (8th Cir. 2012) (stating

that "we have repeatedly held that due process never requires

applying more than a preponderance-of-the-evidence standard for

finding sentencing facts"); United States v. Krieger, 628 F.3d

857, 862 (7th Cir. 2010) ("Sentencing factors need not be

charged nor proved beyond a reasonable doubt, but may instead be

found by the court at sentencing by a preponderance of the

evidence.").

¶39 We likewise conclude that the State must prove this

prior conviction by a preponderance of the evidence. Here,

unlike some PAC charges, the prior OWI conviction is not an

element of the charged offenses and need not be proven beyond a

reasonable doubt.19

19
Our conclusion is not in conflict with State v. Van
Riper, 2003 WI App 237, 267 Wis. 2d 759, 672 N.W.2d 156, and
State v. Bonds, 2006 WI 83, 292 Wis. 2d 344, 717 N.W.2d 133. In
Van Riper, the court concluded that the certified Wisconsin
driving record proved the existence of the defendant's prior
convictions beyond a reasonable doubt. Van Riper did not
analyze or answer whether a lower burden would have been
sufficient. See Van Riper, 267 Wis. 2d 759, ¶¶18, 21.
Similarly, in Bonds, the court concluded that Consolidated Court
Automation Program (CCAP) was insufficient to prove a prior
conviction under Wis. Stat. § 939.62. Bonds, 292 Wis. 2d 344,
¶49. However, Bonds too involved an entirely different statute
than that which we consider today, and because the parties in
Bonds agreed that beyond a reasonable doubt was the proper
(continued)
22
 No. 2017AP1261-CR

¶40 In sum, the State must prove this prior conviction by

a preponderance of the evidence which can be satisfied with a

certified DOT record.

IV. CONCLUSION

¶41 The court is presented with two issues. First, we

consider whether a prior expunged OWI conviction constitutes a

prior conviction under Wis. Stat. § 343.307(1), when determining

the penalty for OWI-related offenses. We conclude that a prior

expunged OWI conviction must be counted under § 343.307(1).

¶42 Second, we consider the State's burden of proving the

prior OWI conviction in second offense OWI-related offenses. We

conclude that the State must prove this prior OWI conviction,

which is not here an element of the offense charged, by a

preponderance of the evidence. Thus, we affirm the court of

appeals.

By the Court.—The decision of the court of appeals is

affirmed.

burden, the court did not analyze or answer whether a lower
burden would have been sufficient. Id., ¶33.

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