2020 WI 45

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP1129

COMPLETE TITLE: City of Cedarburg,

 Plaintiff-Appellant,

 v.

Ries B. Hansen,

 Defendant-Respondent.

ON MOTION FOR RECONSIDERATION

Reported at 390 Wis. 2d 109,938 N.W.2d 463

PDC No:2020 WI 11 - Published

OPINION FILED: May 20, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: 

SOURCE OF APPEAL:

COURT: 

COUNTY: 

JUDGE: 

JUSTICES:

PER CURIAM

NOT PARTICIPATING:

 

ATTORNEYS:

For the plaintiff-appellant, there was a motion for 

reconsideration filed by Johnathan G. Wooward and Houseman & Feind, 

LLP, Gafton, WI.
2020 WI 45

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP1129

(L.C. No. 2017CV411)

STATE OF WISCONSIN : IN SUPREME COURT

City of Cedarburg,

 Plaintiff-Appellant,

 v.

Ries B. Hansen,

 Defendant-Respondent.

FILED

MAY 20, 2020

Sheila T. Reiff

Clerk of Supreme Court

MOTION for reconsideration. Reconsideration granted.

¶1 PER CURIAM. The City of Cedarburg moves the court to 

reconsider ¶30 of its decision in the above-captioned case, issued 

February 11, 2020. See Wis. Stat. § 809.64 (2019-20). The City 

contends the court overlooked State v. Braunschweig, 2018 WI 113, 

384 Wis. 2d 742, 921 N.W.2d 199, wherein the court unanimously 

decided that the proper burden of proof the State must satisfy to 

establish a defendant's prior OWI convictions is a preponderance 

of the evidence. The City requests only that the court modify ¶30 

of our decision in City of Cedarburg v. Hansen to reflect the 

burden of proof announced in Braunschweig.
No. 2018AP1129 

2

¶2 We grant the City's motion for reconsideration to modify 

¶30. Braunschweig established the proper burden of proof to be a 

preponderance of the evidence. It noted that "in some PAC cases" 

under Wis. Stat. § 346.63, in which the text of the statute 

specifically makes "the predicate prior [] an element of the 

offense," the State must satisfy the higher, beyond a reasonable 

doubt burden. Braunschweig, 384 Wis. 2d 742, ¶36 & n.18. However, 

the court held that "the State's burden of proving the prior OWI 

conviction in second offense OWI-related offenses" is a 

preponderance of the evidence. Id., ¶¶3, 32-40. That burden of 

proof applies because a prior OWI offense is not among the 

statutory elements of a second offense OWI. See Wis. 

Stat. § 346.63(1)(a).

¶3 Accordingly, we order that ¶30 in City of Cedarburg v. 

Hansen, 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463, be modified 

to read as follows, with bold indicating the amended language and 

strikethrough indicating the language removed:

A defendant's prior convictions determine his status as 

a repeat offender, not his guilt. State v. Saunders, 

2002 WI 107, ¶3, 255 Wis. 2d 589, 649 N.W.2d 263. 

However, the State must prove a defendant's status as a 

prior offender at sentencing, where prior convictions 

must be established by a preponderance of the evidence. 

See State v. Braunschweig, 2018 WI 113, ¶¶3, 32-40, 384 

Wis. 2d 742, 921 N.W.2d 199. beyond a reasonable doubt.13

Id. Importantly, the city attorney is not required to 

allege or prove that the defendant had no prior offenses. 

¶4 By the Court.—The motion for reconsideration to modify 

¶30 is granted.
No. 2018AP1129 

1