What is Collateral Attack Law?
Now that you understand Wisconsin’s Double First Rule from our past blog, it is important that you also understand collateral attacks on past offenses. In Wisconsin you can “collaterally attack” past offenses based on our 5th Amendment Constitutional right to counsel
Collateral attacks is an attempt to impeach or overturn a judgment rendered in a judicial proceeding on past offenses. This means that if you had any prior criminally charged OWI offenses where you were not represented by an attorney and you do not have a knowing waiver to your right to an attorney, then that offense may be thrown out and not used against you. That means you may collaterally attack your prior conviction when the challenge to your prior conviction is based on the denial of your constitutional right to a lawyer. In the state of Wisconsin, OWI second offenses and higher can be attacked, but if your first offense occurred in another state then it also be attacked.
In order for your waiver of this right to counsel to be valid, the record from your prior offense must reflect not only your deliberate choice to proceed without counsel, but also your awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges you were facing and the general range of possible penalties that may be imposed if you were found guilty. The sentencing court is also required to make a finding that you were competent to not only waive your right to counsel, but also to proceed without counsel. Unless the record reveals your deliberate choice and awareness of these facts, a knowingly and voluntary waiver of counsel cannot be found. Therefore, that means the past offense must be dropped and not used against you. So if your current charge was for an OWI 4th within 5 years (a felony), it is now dropped to a 3rd offense (a misdemeanor).
In order to prove that you did not waive your right to counsel, you have to get the transcript from the plea and sentencing hearing of the offense you are attacking. If there are no records that discuss your deliberate waiver of this right, then the court may drop those prior offenses based off of your testimony. The older the case, the more likely the transcripts has been destroyed.
This is a complicated issue and one to be aware of if you believe one of your older convictions occurred where you were not represented by an attorney. Contact us today to set up your free consultation and to discuss a potential Collateral Attack Defense in your case.