from an order of the circuit court for Milwaukee County
No. 2015CT309 : JEAN M. KEIS, Judge.
Reversed and cause remanded with directions.
Kessler, P.J., Brennan and Brash, JJ.
Traci L. Kollross appeals a non-final order of the circuit
court which denied her motion to dismiss a charge of
operating while intoxicated (OWI) as a second offense. We
reverse and remand the matter for proceedings consistent with
On May 28, 2011, Kollross was arrested in the City of West
Allis after police were dispatched to the scene of an
accident. Officer Todd Clementi suspected that Kollross was
intoxicated. A subsequent blood test revealed the presence of
oxycodone, cyclobenzaprine, and alprazolam. The May 28, 2011
offense was initially prosecuted in the City of West Allis
Municipal Court as an OWI-first offense. Kollross made an
initial appearance on July 18, 2011. Following her
conviction, Kollross appealed the matter to the Milwaukee
County Circuit Court. Because the City of West Allis failed
to timely produce its witness for the scheduled court trial,
the circuit court dismissed the matter without prejudice on
April 17, 2013. The citation was reissued and, following a
motion for substitution of the municipal court judge,
prosecution was reinitiated in Wauwatosa Municipal Court.
While the May 28, 2011 OWI-first offense municipal citation
was pending, Kollross was arrested for another OWI offense in
Washington County on January 26, 2012. The January 26, 2012
offense was charged as an OWI-first offense. Kollross pled
guilty in the Washington County matter and was convicted of
OWI-first on July 11, 2014. Consequently, the Wauwatosa
Municipal Court dismissed the pending OWI-first citation for
lack of subject matter jurisdiction.
On February 5, 2015, the Milwaukee County District
Attorney's Office issued a criminal complaint, charging
Kollross with an OWI-second offense for the May 28, 2011
incident. Kollross moved to dismiss the complaint, alleging
that the three-year statute of limitations for misdemeanor
crimes as set forth in Wis.Stat. § 939.74
(2017-18) had passed for the May 28, 2011 incident.
The statute provides as relevant:
(1) Except as provided in subs. (2) and (2d) and s.
946.88(1), prosecution for a felony must be commenced within
6 years and prosecution for a misdemeanor or for adultery
within 3 years after the commission thereof. Within the
meaning of this section, a prosecution has commenced when a
warrant or summons is issued, an indictment is found, or an
information is filed.
(3) In computing the time limited by this section, the time
… during which a prosecution against the actor for the
same act was pending shall not be included. A prosecution is
pending when a warrant or a summons has been issued, an
indictment has been found, or an information has been filed.
State opposed the motion, arguing that the statute of
limitations for the May 28, 2011 offense was tolled while the
matter was pending.
The circuit court denied Kollross's motion stating that
Wis.Stat. § 939.74(3) "provides that because she
made an appearance in response to [the May 28, 2011] ticket,
that in computing the time limit by the statute, that from
the date of July 18, 2011, until today, the time limits were
tolled." The court further stated:
[A]ll of the time that was spent on this case in the West
Allis Municipal Court, and then this case being appealed to
Milwaukee County Circuit Court previously, and then the