Opinion
Case No. 96-1243-CR.
Opinion Released: September 12, 1996 Opinion Filed: September 12, 1996 This opinion will not be published. See RULE 809.23(1)(b)4, STATS.
APPEAL from a judgment of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
John T. Miller appeals his conviction of driving while intoxicated (second offense). He moved to dismiss the charge on double-jeopardy grounds, claiming that the administrative suspension of his license under the implied-consent law, § 343.305, STATS., bars his subsequent prosecution for driving while intoxicated (or with a prohibited alcohol concentration). The trial court denied the motion, citing our decision in State v. McMaster , 198 Wis.2d 542, 543 N.W.2d 499 (Ct. App. 1995), petition for review granted, ___ Wis.2d ___, 546 N.W.2d 468 (1996), in which we held that no such bar exists.
We note the assertion in the State's brief — which Miller does not dispute in his reply brief — that, at a hearing on his petition for administrative review of the notice of license suspension, the examiner rescinded the suspension imposed by the arresting officer. As a result of that decision and the thirty-day "hiatus" between the officer's notice of suspension and actual suspension, the State says that Miller's license never was suspended: the suspension "was rescinded before it went into effect."
Miller's appeal, apparently filed for the purpose of "preserving the issue for further review," acknowledges the controlling effect of McMaster , and we agree.
By the Court. — Judgment affirmed.