Facts: Years ago, our office had a hearing on a motion to revoke probation. The defendant was accused of technical violations as well as committing DWI. Though we got evidence in to support the motion, the judge delayed in making a ruling. Later on, our office's feelings toward defendant changed, so we filed a Motion to Dismiss the Motion to Revoke, and the reason listed was "lack of evidence". That Motion was granted.

Now Defendant is coming up for trial on the DWI and his lawyer claims we are collaterally estopped under Ex Parte Tarver from prosecuting the DWI. In Tarver, the judge ruled there was a judicial finding that there was not proof of the DWI by a preponderance, hence there could not be evidence beyond a RZBL doubt later. In our case, we filed a motion, which was approved by the judge. I believe the issue according to Tarver is whether or not our motion being approved by the judge is a "fact finding".

I believe it was not a fact finding, as "lack of evidence" could be temporary. If we dismissed the case at a time where we didn't believe we could successfully prosecute but later discovered evidence that did enable us to prosecute, we would be able to refile so long as the statute of limitations has not run.

Do y'all think I'm on the right track? Any suggestions?

Look at Ex parte Taylor, 101 sw3d 434 (cca 2002)

From now on, in your dismissals, use the language "in the interest of justice" and you avoid the headache.

Assuming the defendant is still on probation, you also may have the ability to file a new Motion to Revoke if he has any new violations. I would also argue that the "lack of evidence" ground for dismissal of the old MTR does not operate as a finding of "lack of evidence" on each and every allegation in the old MTR. Would definitely agree with the recommendation to use "interest of justice" in the future. I have always preferred that to a "lack of evidence" notation.

I agree about the use of "best interests of justice" language. The attorney who put us in this situation is no longer with the office, and I get to clean up his mess every day...

John,

So, based on Taylor, my argument should be that since the judge never finally decided the question of whether or not the defendant committed DWI, that collateral estoppel doesn't apply?

That would be my argument--the issue was never decided on its merits by a trier of fact. It was disposed of before the the merits had been adjudicated. Good luck.