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State v. Luber8/17/2000
APPEAL from an order of the circuit court for Dane County: PATRICK J. FIEDLER, Judge. Reversed.
. Adrienne Luber petitions for leave to appeal a non-final order that denied her motion to dismiss a second trial on a charge of driving with a prohibited alcohol content (PAC) after a jury had deadlocked on that charge and found her not guilty on the charge of operating a motor vehicle while intoxicated (OWI). We grant leave to appeal pursuant to Wis. Stat. § 808.03(2) (1997-98).
. Luber contends that a retrial on the PAC charge violates her constitutional guarantee against double jeopardy on two different grounds and that a retrial is also barred by statute, by the doctrine of collateral estoppel, and because the trial court erroneously declared a mistrial. We decide only one issue because it is dispositive: we conclude a second trial on the PAC charge would constitute double jeopardy because there was insufficient evidence at the first trial to convict Luber on that charge. Therefore, we reverse the trial court's order denying Luber's motion to dismiss that charge.
BACKGROUND
. The complaint charged Luber with operating a motor vehicle while intoxicated contrary to Wis. Stat. § 346.63(1)(a) (1997-98) and operating a motor vehicle with a prohibited alcohol concentration contrary to § 346.63(1)(b), as a fourth offense. Because this was a fourth offense, the prohibited alcohol concentration was .08 or more. See Wis. Stat. § 340.01(46m)(b).
. The complaint alleged that on August 15, 1998, at 2:43 a.m. State Patrol Trooper Ricardo Perez stopped Luber while she was operating a motor vehicle, placed her under arrest, and a blood sample taken at 4:40 a.m. revealed a blood alcohol content (BAC) of .147% by weight of alcohol in her blood. The charges were tried to a jury and the jury found Luber not guilty of OWI but it deadlocked on the charge of operating a motor vehicle with a PAC.
. The court entered a judgment of acquittal on the OWI charge and declared a mistrial on the PAC charge. It denied Luber's oral motion for a dismissal of the PAC charge on the ground that there was no evidence establishing the BAC at the time of driving, as opposed to two hours later. The court explained that in its view there was sufficient evidence for a reasonable jury to find beyond a reasonable doubt that the State had proved all the elements, while acknowledging there was also a basis for a reasonable jury to find that the State had not done so.
. After the State indicated its intention to retry Luber on the PAC charge, Luber moved to dismiss that charge on a number of grounds, including the one we address on this appeal: the evidence presented at the first trial was insufficient to support a conviction on the PAC charge and therefore a second trial constituted double jeopardy. The court denied the motion, again ruling there was sufficient evidence for a jury to conclude that Luber was guilty of operating a motor vehicle with a PAC.
DISCUSSION
. The United States and Wisconsin Constitutions both protect against being placed twice in jeopardy for the same offense. In Burks v. United States, 437 U.S. 1, 12-14 (1978), the Court held that the double jeopardy clause precludes a second trial once a reviewing court has found the evidence legally insufficient, and the only available remedy is the direction of a judgment of acquittal. Luber relies on Burks to argue that a second trial on the PAC charge is precluded by the double jeopardy clause because the evidence at the first trial was insufficient to sustain a verdict of guilty on that charge. The State responds that the evidence at the first trial was sufficient to sup
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