Mistake in a Habitual Offender Charge

[Ozzy1]

My question involves criminal law for the state of: Wisconsin

I was arrested and issued a citation for DUI third offense. While it might be my third offense, due to our state laws and being grandfathered into a law, it would only count as my second offense. Can I plead not guilty to this, and have the courts throw out the conviction due to wrongful conviction?

[Taxing Matters]

My question involves criminal law for the state of: Wisconsin

I was arrested and issued a citation for DUI third offense. While it might be my third offense, due to our state laws and being grandfathered into a law, it would only count as my second offense. Can I plead not guilty to this, and have the courts throw out the conviction due to wrongful conviction?

You are being charged with a DUI offense. If you go to trial on this, the jury will only decide if you committed a DUI in this instance; they will not hear about your prior DUI convictions during the trial to determine your guilt. You may of course plead not guilty to the charge and make the state prove its case against you at trial.

If convicted, whether it is a second or third DUI offense for sentencing purposes is something that would be raised after conviction. You won’t get the charges dismissed simply because the state thinks it’s your third DUI when it really only counts as your second. What would happen instead is that the conviction would be treated as your second DUI rather than your third. I strongly recommend that you get a lawyer to defend on you this. Making these kinds of arguments is not a good do it yourself project. If you enter into a plea agreement for this charge, make sure that everyone is in agreement as to whether this counts as your second or third DUI.

I would also urge you to not drive after you’ve had any alcohol to drink. You put others at more risk by doing that, and from here on out further convictions on DUI charges will result in rather severe consequences for you.

[flyingron]

As TM alludes, there's no charge of "third offense DUI", just 346.63. None of the subparts consider whether you have priors. They deal with whether you had a "simple" DUI or whether you injured someone, had a commercial license, were below the "not a drop" age, etc... The penalties are in a completely different section of the reg 346.65 and the assessment of priors is defined in 343.307.

I have no idea what you mean by grandfathering, but I suspect you're wrong there. DUIs count even if they were local or out of state violations of laws/ordinances that are similar to 346.63 plus all manner of suspensions/revocations for refusals and other vehicular homicide charges. About the only time priors don't get scored is when you have two from the same incident (for example, if you refuse to blow but the still get you on DUI, that only counts as one).

What DUI offense "number" did you get charged with and why do you think your prior doesn't count.