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Defense win on suppression of evidence relating to destroyed blood sample, loss on sanctions against County

County of Milwaukee v. Ross J. Romenesko, 2017AP1042-1044, 6/19/18, District 1, (1-judge appeal, ineligible for publication); case activity (including briefs)

Romenesko prevailed below–the circuit court (1) suppressed a revised report relating to his blood sample, (2)  precluded but one of its experts from testifying, and eventually (3) dismissed the the OWI 1st offense and operating with a PAC 1st offense charges against him as a sanction against the County. The court of appeals affirmed the suppression decision but reversed the other 2 decisions.

This little case began in 2013 and proceeded through at least 15 hearings and 3 different judges before it was dismissed in 2017.  Boiled down, the problem, at least according to Romensko, was that the County committed multiple egregious violations of the 1st judge’s scheduling order, to wit, while the County had given Romenesko the original lab report on his blood sample, it had not provided him with the revised report show Delta-9-THC in his blood. It had failed to supply expert testimony summary reports. And it had not listed a substitute expert lab analyst on its witness list to testify about the revised report.

The court of appeals affirmed the suppression decision but not because the county failed to timely provide the revised lab report to Romenesko. The fact is, the state lab had destroyed the blood sample well before it belatedly provided the revised report to the County. In other words, the County wasn’t to blame. Nevertheless, the court of appeals held:

¶31 Nevertheless, we conclude that the circuit court’s decision to suppress this evidence was reasonable, based on admissibility issues. Due to the extensive delay—almost three years—before either party was aware of the revised report, there were no additional charges filed against Romenesko relating to the Delta-9-THC because the statute of limitations had expired. This calls into question the relevance—and thus admissibility—of this evidence.

As for the the circuit court’s decision to preclude the County’s experts and then dismiss all of the charges, the court of appeals held that the circuit court was just wrong on the law and the facts. At a minimum, record provided no basis to preclude the original lab expert  to testify. Given the protracted pre-trial proceedings, it wasn’t unreasonable to need a substitute expert. And the County did not engage in bad faith or egregious conduct with respect to the scheduling order.  See Industrial Roofing Servs., Inc. v. Marquardt, 2007 WI 19, ¶413 299 Wis. 2d 81, 726 N.W.2d 898. Romenesko caused delays too. Opinion ¶¶37-38. The court of appeals reversed the decision to preclude all of the County’s experts and the dismissal with prejudice. It remanded the case to reinstate the charges and continue proceedings.

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