Gegner Law Office
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OWI Collateral Attack
If you are charged in Wisconsin for an OWI-2nd offense or greater, and you did not have an attorney for any one of your previous convictions, you may be able to reduce your current charges by means of a collateral attack.

A collateral attack can only be made on prior OWI convictions where you did not have a lawyer.  To make a collateral attack, a motion must be filed with the court in which you are facing  your current OWI charges.  The Motion asks the judge to prevent the state from using any of the collaterally attacked prior convictions against you for purposes of counting.  If the collateral attack succeeds, the charges will be reduced.  For example, if the defendant is charged with OWI-4th offense and successfully collaterally attacks one of the prior offenses, that offense cannot be used to count towards the current offense, the OWI-4th offense would be reduced to an OWI-3rd offense.  That is extremely significant, considering the fact that fines and jail time rise dramatically for each subsequent OWI conviction.

A collateral attack on a prior OWI conviction is based upon a defendant's failure to legally waive his or her right to an attorney when he or she was found guilty of a previous OWI charge.  If a defendant does not have an attorney for a previous OWI conviction, the court must conduct a special question and answer session (known as a colloquy) to determine if the defendant has intelligently, knowingly, and voluntarily waived his or her right to an attorney.

During this colloquy, the judge must speak with the defendant and determine four things:  (1) the defendant made a deliberate choice to proceed without counsel; (2) the defendant was aware of the difficulties and disadvantages of self-representation; (3) the defendant was aware of the gravity of the charges against him or her; and (4) the defendant was aware of the general range of penalties which could be imposed.  Also, the judge must make a finding on the  record that the defendant was competent to proceed with self-representation in court.

It is possible the judge did everything correctly, in which case you would not be eligible for a collateral attack.  However, the only way to determine whether or not the judge handled the colloquy correctly is to order a transcript of the plea hearing and review it.  Gegner Law Office has had great success with the collateral attacks, and will investigate the possibility of making a collateral attack should you have  prior OWI convictions.