State can dismiss, refile drunk driving case.

• Author: Ziemer, David

Byline: David Ziemer

When a court bars the State from presenting evidence, as a sanction for failure to comply with the discovery statutes, the State may dismiss and refile a new case, in which it can present the barred evidence, the Wisconsin Court of Appeals held on May 6.

On June 5, 2000, the State charged Jason C. Miller with OWI, fifth offense, for an incident that occurred on June 3. The State later added a charge for operating with a prohibited alcohol concentration, based on the same incident.

In early September 2000, Miller filed a discovery demand for all reports of expert witnesses or, if none existed, a written summary of the expert's findings. However, the State did not provide any reports or summaries in response to the request until Feb. 23, 2001, the Friday before the Monday jury selection.

Miller moved to exclude the evidence on blood alcohol concentration, asserting that the State had not provided the summary within a reasonable time before trial as required by sec. 971.23(1)(e).

Dane County Circuit Court Judge Moria Krueger agreed and granted the motion pursuant to sec. 971.23(7m)(a), which provides: "The court shall exclude any ... evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance."

The State then asked for a continuance, to which Miller objected. Judge Krueger concluded that, unless Miller sought or agreed to a continuance, the court was required by secs. 971.23(1) and (7m)(a) to exclude the evidence. Judge Krueger therefore ruled that the expert's testimony was excluded and denied the State's motion to stay that ruling pending appeal.

The prosecutor then moved to dismiss the charges, and Miller opposed the motion. Judge Krueger concluded she did not have the authority to deny a prosecutor's motion to dismiss charges because he or she was not prepared to proceed, nor the authority to dismiss with prejudice. Accordingly, Judge Krueger granted the motion and dismissed the charges without prejudice.

The State then reissued the two charges in a complaint filed in May 2001. The case was assigned to Judge David Flanagan. Miller moved to "enforce" Judge Krueger's order excluding the State's expert's BAC testimony on the grounds of equal protection, issue preclusion, claim preclusion, and estoppel by record.

Judge Flanagan denied the motion, and Miller was convicted. He...