Kevin M. St. John
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
TTY 1-800-947-3529
            May 30, 2014         OAG-02-14
AddressMark Gottlieb, P.E.
Department of Transportation

4802 Sheboygan Avenue, Room 120B

Madison, WI 53705
ReStartDear Mr. Gottlieb:
¶ 1. Wisconsin Stat. §§ 343.30(1q) and 343.305 authorize the revocation of a person’s operating privilege following a conviction for operating a vehicle under the influence of intoxicants or refusal to submit to a test for intoxication, respectively. The Department of Transportation (“DOT”) may revoke the offender’s operating privilege if a court fails to do so. Wis. Stat. §§ 343.30(1q)(f) and 343.305(10)(f). You ask which convictions DOT should count in making this determination.
¶ 2. Specifically, you ask whether a conviction that has been collaterally attacked for criminal sentencing purposes should be disregarded by DOT in determining whether to revoke the offender’s operating privilege. An offender may challenge, or “collaterally attack,” the use of a conviction for purposes of calculating a sentence for a new criminal conviction.
¶ 3. I conclude that DOT must count these convictions. The statutes require DOT to maintain a permanent record of all unvacated convictions and use that record to calculate revocations. A conviction that has been collaterally attacked remains on the record. It is irrelevant that the offender may have a right to have the conviction disregarded for criminal sentencing: the revocation of operating privileges is a civil, not a criminal, consequence.
¶ 4. In providing for license revocation, the Legislature has provided no statutory exception to exclude a conviction based on a collateral attack. The statutes mandate that specific prior convictions, suspensions, or revocations be counted. Wis. Stat. § 343.307(1) (“The court shall count the following . . . ”)(emphasis added). The statute defines “conviction” as including any “unvacated adjudication of guilt. . . .” Wis. Stat. § 340.01(9r). Even a conviction that has been expunged continues to be listed in DOT’s records under Wis. Stat. § 343.23(2)(a).
Wis. Stat. § 973.015(1m)(a). DOT must permanently maintain a record of those suspensions, revocations, and convictions for use in determining whether to revoke:
[S]o 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. The record of suspensions, revocations, and convictions that would be counted under
s. 343.307(2) shall be maintained permanently.
Wis. Stat. § 343.23(2)(b).
¶ 5. A conviction that has been collaterally attacked meets the definition of “conviction” under Wis. Stat. § 340.01(9r) because a collateral attack does not overturn or vacate the conviction. Instead, it attempts to avoid the conviction’s force of law in a subsequent criminal proceeding. State v. Sorenson, 2002 WI 78, ¶ 35, 254 Wis. 2d 54, 646 N.W.2d 354. Thus, as long as the adjudication of guilt is unvacated, the conviction remains on DOT’s records and should be counted in determining whether to revoke the offender’s operating privilege.
¶ 6. No constitutional principle alters the analysis. As you note, a defendant may challenge the effect of a previous conviction for purposes of criminal sentencing on the grounds that it was obtained in violation of the Sixth Amendment’s right to counsel in criminal proceedings. Custis v. United States, 511 U.S. 485, 495-96 (1994); Burgett v. Texas,
389 U.S. 109, 115 (1967);
State v. Ernst, 2005 WI 107, ¶ 22, 283 Wis. 2d 300, 699 N.W.2d 92. That principle is inapplicable to the revocation of operating privileges because revocation is a civil, not a criminal, consequence.
¶ 7. The Sixth Amendment does not prohibit the use of an uncounseled conviction for all purposes. In Lewis v. United States, 445 U.S. 55 (1980), the U.S. Supreme Court held that a federal prohibition on firearms possession could permissibly be based on a conviction obtained in violation of the Sixth Amendment. The Court reasoned that the Sixth Amendment was not a barrier to considering such a conviction because the statute’s consequence was essentially civil:
  Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this Court found that the subsequent conviction or sentence violated the Sixth Amendment because it depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from potentially dangerous
. . . . Enforcement of that essentially civil disability through a criminal sanction does not “support guilt or enhance punishment,” see Burgett, 389 U.S.,
at 115, 88 S. Ct., at 262 . . . .
Lewis, 445 U.S. at 67.
¶ 8. Wisconsin case law also limits the application of collateral attacks to circumstances in which the prior conviction would be used to support guilt or enhance a criminal penalty, not those in which the consequences are civil. The basic distinction has been repeatedly stated by the Wisconsin Supreme Court:
A defendant may, in a subsequent proceeding, collaterally attack a prior conviction obtained in violation of the defendant’s right to counsel if the prior conviction is used to support guilt or enhance punishment for another offense. A defendant may not, in a subsequent proceeding, collaterally attack a prior conviction if the prior conviction is used to identify the defendant as a member of a potentially dangerous class of individuals.
State v. Foust, 214 Wis. 2d 568, 572, 570 N.W.2d 905 (Ct. App. 1997) (quoting State v. Baker, 169 Wis. 2d 49, 59-60, 485 N.W.2d 237 (1992)).
¶ 9. The revocation of operating privileges falls into the second category. “When the state revokes a person’s license, the state thereby identifies and classifies that person as a potentially dangerous individual who should not drive a motor vehicle and alerts that person to this status.” Baker, 169 Wis. 2d at 64 (footnote omitted). Unlike the use of a conviction to support guilt or enhance a punishment for a subsequent offense, its use to calculate the revocation of operating privileges results in no criminal penalty and is not punishment for the offense. It simply determines who is licensed to drive, which serves the purpose of protecting public safety on the roadways:
The automobile of today, with engineering emphasis on power and speed, can be a crippling and potentially lethal weapon in the hands of an irresponsible driver. Licensing helps to assure safe drivers and also provide a good
record-keeping system for
identifying irresponsible drivers.