Van Hollen Concludes in Formal Opinion That Prosecutors May Not Forgo Filing Charges, Nor Can They Amend or Dismiss Charges, in Exchange for a Defendant's Agreement to Reimburse Law Enforcement for the Costs of an OWI Blood Withdrawal

Law Does Not Prohibit Prosecutors From Negotiating Sentence Recommendations On Basis Of Reimbursement, But Prosecutors Should Be Mindful Of State's Policy To Equal Treatment Of Defendants, Without Respect To Wealth Or Indigency

MADISON - Attorney General J.B. Van Hollen today issued a formal opinion that Wisconsin law currently does not allow prosecutors to resolve drunk-driving cases by entering into an agreement to dismiss or amend a charge, citation, or complaint or to forgo the initiation of a criminal prosecution, action, or special proceeding in exchange for a defendant's agreement to reimburse a law enforcement agency for blood withdrawal analysis and expenses.

The law does not, however, preclude a prosecutor from entering other agreements in exchange for reimbursement so long as the prosecutor is not agreeing to forgo prosecution or to dismiss or amend charges.  An example of such an agreement might include an agreement to make a sentencing recommendation which is otherwise consistent with the law.  The opinion cautioned District Attorneys, however, to be mindful of ethical rules, the requirements for entering into a valid plea agreement, and other public policy considerations when exercising prosecutorial discretion.  

The opinion responds to a question from Green Lake County District Attorney Winn S. Collins on the meaning of 2007 Wisconsin Act 84, which amended sections 778.027 and 967.057 of the Wisconsin Statutes. 

A copy of the opinion.

A copy of the request for the opinion.