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OWI – Statute of Limitations

State v. Bradley A. Faber, 2010AP2325-CR , District 2, 3/23/11

court of appeals decision (1-judge, not for publication); for Faber: Susan E. Alesia, SPD, Madison Appellate; case activity

¶1        The State of Wisconsin appeals from an order of the circuit court dismissing the criminal charges against Bradley A. Faber.  Faber was issued a pair of citations for operating a motor vehicle while intoxicated (OWI) (First offense) by the City of Delavan in November 2005 and February 2006.  The City apparently lost track of the prosecution of these citations as they never reached final disposition in municipal court.  Faber was later convicted of three OWI-type offenses between 2007 and 2008.  When the Walworth County District Attorney’s Office learned of the November 2005 and February 2006 citations, the State charged Faber with two counts of OWI—fourth offense on May 10, 2010.  Faber argued that the three-year statute of limitations period to prosecute misdemeanors had run, and the circuit court agreed.  We affirm the circuit court’s order.

The State argued the tolling provision of § 939.74(3) (limitation period suspended during time prosecution for same act was “pending”) – the municipal citations remained “pending” within the 3 years before the complaint was filed, therefore the limitation period hadn’t run out. The court rejects the argument, because reliance on municipal traffic cases is inapt:

¶9        We reject the State’s argument as a municipal traffic citation is not enough to confer personal jurisdiction in criminal proceedings before a circuit court.  See State v. Banks, 105 Wis. 2d 32, 40, 313 N.W.2d 67 (1981).  The time the City spent prosecuting Faber for an OWI—first offense did not toll the statute of limitations for the State’s prosecution of Faber for an OWI—fourth offense because an OWI—first offense is a forfeiture action and thus is not a criminal proceeding.  See Wis. Stat. § 939.12.  Therefore, the tolling provision of Wis. Stat. § 939.74(3) does not apply to the City’s prosecution of Faber’s November 2005 and February 2006 OWI—first offense ordinance violations because the circuit court did not exercise personal jurisdiction over those citations.

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