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Dismissal after suppression ruling was premature

County of Green v. Joey Jay Barnes, 2018AP1382, District 4, 2/7/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court dismissed charges against Barnes after suppressing some of the evidence against him. Not so fast, says the court of appeals.

Barnes was charged with operating while intoxicated and operating with a prohibited alcohol concentration, both as first offense. He filed a motion to suppress evidence police collected from him in the emergency room he was taken to after his one-car accident. The circuit court granted the motion and suppressed, among other things, the blood test and HGN results. Over the County’s objections, the court then dismissed both charges. (¶¶3-5).

The County argues the OWI shouldn’t have been dismissed, as it has evidence collected before Barnes got to the ER that they can use to prosecute him (e.g., his admission to police he had four drinks and his inability to explain the accident other than to say he’d lost control). The court of appeals agrees.

¶7  …. Precise evidence of a defendant’s blood alcohol concentration is not an essential element required to find that Barnes violated Wis. Stat. § 346.63(1)(a) (the statutory basis for the OWI citation). See, e.g., Wis. J.I.-Criminal 2663B. Even without the suppressed evidence, the record shows that the County could prevail on the OWI citation. As well, the citation is for a civil forfeiture, and the applicable burden of proof is not beyond a reasonable doubt. See id. (applicable burden of proof is “clear, satisfactory, and convincing” evidence of essential elements). So, even without the benefit of the suppressed evidence, the County must have the opportunity to try the OWI citation as it requests.

¶8   It is true that a required element of proof for the BAC citation is the defendant’s “alcohol concentration” in their breath or blood. See, e.g., Wis. J.I.-Criminal 2668. However, that does not require that the suppression of evidence issues be reviewed at this time. OWI and BAC charges are unique because, pursuant to Wis. Stat. § 346.63(1)(c) (“there shall be a single conviction for purposes of sentencing”), Barnes cannot be sentenced for violating both § 346.63(1)(a) and (b). Therefore, if the County prevails at trial on the OWI citation without the suppressed evidence, the suppression issues are moot because, in that circumstance, the County will never need the suppressed evidence for a trial.  ….

Because the circuit court erred in dismissing both citations rather than giving the County an opportunity to try the OWI citation without the suppressed evidence, the court of appeals doesn’t consider or discuss whether the circuit court’s suppression decision was wrong, as the County argues. “The parties may address those issues in the event of a subsequent appeal to this court.” (¶8).

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