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Statute of Limitations – Reopened OWI-1st; Excited Utterance

City of Waukesha v. James F. Murphy, 2010AP2499, District 1/2, 11/29/11

court of appeals decision (1-judge, not for publication); for Murphy: Leonard G. Adent; case activity

The City obtained dismissal of a then-pending OWI-1st, after discovering that Murphy had an OWI-related conviction. (Per Walworth Cnty. v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982), the State has exclusive authority over second and subsequent drunk driving offenses.) However, before the State case could be tried, Murphy’s prior conviction was vacated, which had the effect of transforming the pending case back to an  OWI-1st. The City then brought a motion to reopen the dismissed prosecution pursuant to § 806.07(1)(f)-(h), which the trial court granted over Murphy’s objection that the statute of limitations for that offense had expired. Murphy was found guilty, and renews the objection on appeal; the court of appeals affirms, rejecting Murphy’s argument that when the original case was dismissed, it “ceased to be commenced” and had to be reopened prior to nominal expiration  of the limitation period.

¶15      Furthermore, as the trial court and the City correctly point out, Cynthia M.S. v. Michael F.C., 181 Wis. 2d 618, 620, 622, 631-632, 511 N.W.2d 868 (1994), in which the supreme court found that a motion for relief from judgment brought more than a decade after the cause of action accrued was brought within a “reasonable time,” shows that motions made under Wis. Stat. § 806.07(1)(h) should be considered separately from statute of limitations periods.  In Cynthia M.S., the supreme court explained:  “[s]tatutes of limitation establish ‘bright line’ time constraints which courts cannot freely ignore.  Motions under [Wis. Stat. §] 806.07(1)(h) are not subject to such bright-line rules.”  See id. Consequently, this court rejects Murphy’s arguments about the effect of the statute of limitations on the trial court’s ability to reopen his original OWI/PAC case.

¶16      Thus, this court concludes that the trial court properly exercised its discretion pursuant to Wis. Stat. § 806.07 when it allowed the City to reopen the original OWI/PAC case.  The trial court gave several reasons for allowing the City to reopen its claim against Murphy, including the fact that the City filed its motion to reopen just a month after the improper refusal in Milwaukee County was dismissed, and that the public would otherwise be deprived of its right to have an alleged offense prosecuted.  Under the applicable standards, this court concludes that the trial court did not erroneously exercise its discretion.  See Johns v. Cnty. of Oneida, 201 Wis. 2d 600, 608, 549 N.W.2d 269 (Ct. App. 1996) (considerations to be made when determining whether to allow a case to be reopened under Wis. Stat. § 806.07(1)(h) include “whether relief is sought from a judgment in which there has been no judicial consideration of the merits and the interest of deciding the particular case on the merits outweighs the finality of judgments”); see also Wisconsin Pub. Serv. Corp. v. Krist, 104 Wis. 2d 381, 395, 311 N.W.2d 624 (1981) (“[T]he law prefers, whenever reasonably possible, to afford litigants their day in court.”). …

Culbert v. Ciresi, 2003 WI App 158, ¶¶10-15, 266 Wis. 2d 189, 667 N.W.2d 825 (dismissal in federal court doesn’t toll statute of limitations in state court), deemed “inapposite because Murphy’s case is not a case about the commencement of a new action,” ¶13. Johnson v. Cnty. of Crawford¸ 195 Wis. 2d 374, 380, 383, 536 N.W.2d 167 (Ct. App. 1995) (§ 893.13(2) tolls statute of limitations for every cause of action when an action is filed, including where case is voluntarily dismissed), arguably followed, ¶12 n. 2.

Statement of an occupant of the car, one-half hour after the car was parked, that he (rather than Murphy) had been the driver, wasn’t admissible as an excited utterance, because there is no evidence in the record he made the statement “under the stress of excitement caused by the event,” § 908.03(2). (¶18)

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