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COURT OF APPEALS
DECISION
NOTICE
DATED AND FILED
This opinion is subject to further editing. If
published, the official version will appear in the
bound volume of the Official Reports.
December 16, 1997
                                                                                      Marilyn L. Graves         A party may file with the Supreme Court a
                                                                                      Clerk, Court of Appeals   petition  to  review  an  adverse  decision  by  the
                                                                                      of Wisconsin              Court of Appeals.  See § 808.10 and RULE 809.62,
                                                                                                                STATS.
No.                                                                                   97-2627-FT
STATE OF WISCONSIN                                                                    IN COURT OF APPEALS
                                                                                      DISTRICT III
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
RICHARD D. HUBATCH,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Shawano County:
THOMAS G. GROVER, Judge.   Reversed.
MYSE, J.     Richard D. Hubatch appeals a judgment1 convicting
him of  wrongfully refusing to submit to chemical testing,  §  343.305,  STATS.
Hubatch argues that his conviction should be overturned because the action was
prosecuted by the city attorney instead of by the district attorney.   Because this
1 This is an expedited appeal under RULE 809.17, STATS.




No. 97-2627-FT
court concludes that the city and state willfully have been engaged in a long-
standing practice of avoiding the requirement that refusal actions be prosecuted by
the state, the judgment is reversed.
Hubatch was charged with operating while intoxicated, and refused
to submit to a chemical test to determine the presence of alcohol in his blood.   He
requested a hearing to determine whether his refusal was lawful.   The City of
Shawano began to prosecute the refusal, subpoenaing prosecution witnesses and
responding to Hubatch’s discovery demands.   The city removed itself from the
case only after Hubatch moved to dismiss based on the city’s lack of authority to
prosecute such actions.
The assistant district attorney appeared with the city at the hearing
on Hubatch’s dismissal motion and declared its readiness to prosecute the action.
The trial court refused Hubatch’s dismissal motion, concluding that any dismissal
would be without prejudice and therefore would accomplish little beyond creating
an unnecessary delay.   Because all those necessary to properly prosecute were
already  present,  the  hearing  proceeded  with  the  assistant  district  attorney
conducting the examination of the witnesses arranged for by the city attorney.   The
trial court ultimately concluded that Hubatch’s refusal was wrongful, and revoked
his driving privileges for a year.   Hubatch appeals.
Hubatch asserts that the trial judge erred by failing to dismiss the
case for wrongful prosecution.   Hubatch correctly notes that the law has been clear
for almost twenty years that the state must prosecute refusal actions.   In City of
Madison v. Bardwell, 83 Wis.2d 891, 903, 266 N.W.2d 618, 624 (1978), the court
held that in such proceedings  “the state is the interested party, and the district
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No. 97-2627-FT
attorney should [prosecute] the case.”   The state does not contest that Bardwell
unambiguously requires it to prosecute refusal actions.
Hubatch contends that the City of Shawano and the district attorney
wrongfully  have  avoided  the  requirement  of   Bardwell  by  reaching  an
understanding that allows the city attorney to prosecute these actions.   Under this
implicit agreement, the city begins the prosecution and carries it out until the
defendant objects to the wrongful prosecution.   If the defendant fails to object at or
before the trial, the objection is waived and the city’s prosecution will stand.   See
id. (failing to object to the city prosecuting the action is waived if not objected to).
On the other hand, if the defendant does object, the city will make arrangements
for the district attorney to take over the case.
The existence of such a long-standing agreement in violation of the
Supreme Court’s holding in Bardwell is not disputed.   At the motion hearing, the
circuit judge noted that the city had been prosecuting refusals for twenty years.
(27:4).   The city attorney admitted to trying these cases for the nineteen years he
had been involved with the city attorney’s office (27:6).   Finally, in its brief, the
state recognizes the “19 year old practice of the city attorney’s office to prosecute
refusal hearings unless the defense objects.”    Accordingly, this court does not
hesitate to conclude that Bardwell was not complied with.
The state next argues that any violation of Bardwell resulting from
its illegal agreement with the city was harmless error.   Considering the conscious
disregard of the law which has existed for nineteen years, this court cannot agree.
While Hubatch himself may not have suffered any specific prejudice, the broader
social harm caused by a disregard for the legal requirements by those charged with
the responsibility to enforce the law is sufficient to demonstrate prejudice.   The
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No. 97-2627-FT
community is entitled to have refusal hearings prosecuted in accordance with the
requirements of the law.   Ignoring such requirements prejudices the community
because the process required has not been followed.   Such a practice can no longer
continue.   The judgment is therefore reversed.   For the same reasons, this court
declines to accept the state’s request for dismissal without prejudice.
By the Court—Judgment reversed.
This opinion will not be published.   RULE 809.17(2)(b)4, STATS.
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