(concurring). I write separately to emphasize that the majority’s holding that testimony adduced but not considered at the first preliminary examination is “unused” evidence rests on the peculiar nature of this case.
In this case the state presented at the first preliminary examination a written laboratory report as evidence of the fact that the evidence seized from the defendant contained LSD. The defendant demanded the appearance of the chemist who had prepared the report, and the court continued the preliminary examination to another day to allow the chemist to testify. Sec. 165.79(8) (b), Stats. 1979-80.
The chemist’s testimony at the continued preliminary examination revealed that the original written report was incomplete, because when the chemist had prepared it he had not finished all tests and he could not report to a reasonable degree of scientific certainty that the samples contained LSD. After the written report was filed, the chemist performed additional confirmatory tests, and he testified that the samples contained LSD.
At the continued preliminary examination the circuit judge refused to consider the chemist’s testimony not because the testimony was inadmissible under the rules of evidence but because the judge was angry at the chemist whom the judge believed was doing the court a disservice in having prepared and filed an incomplete written report. The circuit judge refused to accept the district attorney’s assertion that because the chemist was present to testify at the continued preliminary examination at the demand of the defendant, sec. 165.79 (3) (b), the chemist could testify beyond the scope of his filed written report.
*224As the following excerpt from the transcript of the first preliminary examination reveals, the circuit judge appeared to be more concerned with the quality of chemists’ reports submitted for use at preliminary examinations than with hearing the chemist’s testimony regarding the evidence of the alleged crime in this case.
“The Court: . . . The Court, frankly, is a little shocked. You mean to tell us that you’re turning out reports which don’t indicate conclusions ?
“The Witness: No, Your Honor, I was asked, because my analysis was not completed on that date, to provide something in writing that would indicate that LSD was present, and my analysis, which I told him over the phone, I didn’t have my report finished at that time . . . and of course since that time I have completed my analysis and at this time I can give a written or other report.
“ [Assistant District Attorney]: I think that his testimony here today was that he did find that the tests that he performed did indicate there was likely the presence of LSD. ... I think that based on the information we have here today we can have a bindover on that count.
“The Court: I don’t think that has anything really to do with what we’re doing here today. What I’m saying to this young man is, the Court is shocked that he would make a report like this because under our procedure we basically accept that report, and I suspect what it will mean is that now every time we have a preliminary examination they’re going to demand the people come over here.
“What I’m doing is, I’m chewing you out a little bit here. I don’t think you should send us a report, unless it’s a final report, because that report is accepted here in lieu of having you testify, and I would suggest that you go back and discuss this with your supervisor that there be a new procedure established down there.
“I will frankly say that I am horrified with what this witness has done here. He’s certified a report which isn’t anything at all, and we received that report at that time as evidence to the fact and findings as stated at *225that time. Now he comes in and tells us that he has made some more tests.
“Now, I grant you that what we’ll probably be doing here is that you’ll have to start over and have a new preliminary, we’ll have to do it again.
“I don’t think there is anything untrue in there [the report]. Frankly, I didn’t read it back when we did this, but what I’m saying very strongly is that the Court would assume in any one of these cases that the report that is made would be equivalent to the testimony of a chemist.”
The circuit judge apparently granted the motion to dismiss the charge to teach the chemist and district attorney a lesson, namely, that the circuit judge was not going to put up with their filing in circuit court incomplete, and therefore potentially misleading, reports. It is clear from the record that the circuit judge understood that the chemist’s testimony presented at the continued first preliminary examination was admissible evidence, that the same evidence would be presented at a second preliminary examination, and that the same evidence presented at the second preliminary examination would justify binding the defendant over for trial.
This case is not the usual case of a circuit judge who hears but erroneously refuses to admit or to consider evidence in a preliminary examination and consequently discharges the defendant. Under the peculiar circumstances of this case, I agree with the majority that the more sensible approach is to allow the charges to be reissued rather than to force the state to appeal from the circuit judge’s order.