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.
¶ 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.
County of Fond du Lac v. Derksen, 2002 WI App 160, ¶ 8, 256 Wis. 2d 490, 647 N.W.2d 922 (citation omitted). The constitutional principle underlying a collateral attack, which arises when criminal consequences are at stake, thus does not apply to the revocation of a driver’s license. ¶ 10. Courts in other jurisdictions have held consistently that an individual may not collaterally attack the validity of a prior conviction for purposes of the state’s revocation of operating privileges. In Broadwell v. Michigan Department of State, 539 N.W.2d 585,
(Mich. Ct. App. 1995), the Michigan court of appeals held that the state licensing agency could not disregard a conviction that had been collaterally attacked in the course of a criminal proceeding. The court concluded: [D]river’s license revocation is mandatory, and a prior [operating under the influence of liquor] conviction that is determined to be constitutionally infirm on collateral attack can form the basis for the administrative action of revoking a person’s driving privileges.
Broadwell, 539 N.W.2d at 587 (citation omitted).
¶ 11. In the context of revocations determined in administrative proceedings, other courts have agreed that the state should disregard collateral attacks on previous convictions. See, e.g., Ray v. Dep’t of Transp., 821 A.2d 1275, 1278 (Pa. Commw. Ct. 2003); Commonwealth v. Duffey, 639 A.2d 1174, 1177 (Pa. 1994) (“[T]he scope of review of an operating privilege suspension which resulted from a criminal conviction does not include the authority to attack the validity of the underlying criminal conviction.”); State v. Laughlin, 634 P.2d 49, 51 (Colo. 1981) (distinguishing criminal habitual traffic offender cases, in which a constitutional challenge to an underlying conviction may be mounted, from a driver’s license revocation proceeding, where it may not). These courts have concluded that a collateral attack on a prior conviction is irrelevant for license revocation purposes because revocation is not a criminal sanction. A licensee’s recourse is not a collateral attack, but rather a post-conviction remedy to vacate the criminal judgment. Ray, 821 A.2d at 1278; Laughlin, 634 P.2d at 51.
¶ 12. I conclude that, unless a conviction has been vacated, DOT must count convictions that have been collaterally attacked when it determines whether to revoke an individual’s operating privilege.
Sincerely,
J.B. VAN HOLLEN
Attorney General
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