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Statute of limitations barred re-prosecution of OWI that was improperly charged as a first offense

State v. Benjamin J. Strohman, 2014AP1265-CR, District 3, 2/3/15 (1-judge decision; ineligible for prosecution); case activity (including briefs)

Rejecting the state’s arguments that the statute of limitation had been tolled, the court of appeals holds the state could not re-charge Strohman for an OWI offense that was improperly treated as a first offense because the time limit for charging the offense had expired.

In 2013 Strohman successfully vacated an adjudication for a 2005 OWI offense that was improperly treated as a civil forfeiture because Strohman had a prior OWI conviction. City of Kenosha v. Jensen, 184 Wis. 2d 91, 99, 516 N.W.2d 4 (Ct. App. 1994) (municipal court has no authority to adjudicate a criminal-offense OWI, and any such municipal action is null and void). A few months later the state filed a criminal charge for the 2005 offense. The circuit court denied Strohman’s motion to dismiss, which argued the three-year statute of limitation under § 939.74(1) had expired. (¶¶2-3).

The court of appeals reverses, finding lots of problems with the state’s argument that the limitation period was tolled under State v. Deilke, 2004 WI 104, 274 Wis. 2d 595, 682 N.W.2d 945, which held that a defendant’s successful collateral attack against a prior criminal OWI conviction constituted a breach of the plea agreement and the state could re-prosecute the prior case because the statute of limitation was tolled under § 939.74(3). But that tolling statute doesn’t apply here:

¶9        Strohman’s citation in 2005 was adjudicated by a municipal court that imposed a civil forfeiture. A civil forfeiture is not a criminal proceeding, see Wis. Stat. §§ 346.65(2)(am)1.939.12. Strohman was never criminally prosecuted or convicted for his 2005 offense until 2013, and this fact matters, despite the State’s protests otherwise. Strohman’s civil forfeiture proceeding cannot constitute a pending prosecution under Wis. Stat. § 939.74(3) because no warrant, summons, indictment, or information was involved. It is noteworthy that the language in § 939.74(3) defining when a prosecution is “pending” for tolling purposes is identical (but for the tense of the verbs used) to the language in that same statute’s subsection defining when a prosecution has “commenced.” See Wis. Stat. § 939.74(1). In both instances, only criminal prosecutions are contemplated. This makes sense, given that the statute’s concern is with timely establishing a circuit court’s personal jurisdiction over a criminal defendant. Accordingly, Strohman’s civil forfeiture proceedings could not toll the applicable limitations period in § 939.74(1).

The state analogizes Strohman to the plea-breaching collateral attacker in Dielke, but the court will have none of it:

¶13     …. Deilke was, first and foremost, a case about the effect of a breached plea agreement. Id., ¶¶13-26. There was no such breach here. The State acknowledges this, as it must, and accordingly qualifies and explains its position:

Although there was not a violation of a plea agreement with the State here, like there was in Deilke, there certainly was subsequent action taken by Strohman that undermined the conviction obtained by the prosecuting agency in that case. Strohman’s action, of accepting a first OWI offense when it was actually his second, led the State ‘to refrain from prosecuting’ this case criminally.

¶14      Herein lies a fundamental problem with the State’s position. Throughout its brief, the State mischaracterizes Strohman’s no-contest plea as a “misrepresentation” that the State “relied upon” to its detriment. Under the facts of record, however, Strohman never made any “representation,” much less a misrepresentation, regarding his prior offenses. Rather, Strohman was charged with an OWI offense to which he merely pleaded no contest. Defendants have no obligation to disclose prior offenses, and the establishment of prior offenses is unquestionably a duty belonging to the State. …

¶15      This is especially so when a defendant, like Strohman, is never asked about any prior OWI or alcohol-related offenses. …

The language quoted above reflects the state’s reliance on the doctrine of equitable estoppel, but “the State provides no authority that equitable estoppel can be applied to toll limitations periods in criminal cases, especially in light of Wis. Stat. § 939.74(3).” (¶16).

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