¶ 70. (concurring). This case can be decided without the extensive statutory interpretation contained in Part II of the majority opinion. Because I have reservations about that interpretation, I am not prepared to join Part II of the opinion. I do join Parts I, III, IV, and V, as well as the mandate of the court.
¶ 71. This case starts with a traffic arrest. Shortly before 5:00 a.m. on February 1, 1997, Madison police officer Kevin Linsmeier investigated a car parked in front of 2841 Moland Street in Madison. Lin-*601smeier had been called to the scene by a city parking monitor. He found a parked vehicle in the street with its engine running and saw Leonard Jones sitting alone in the driver's seat. Jones appeared to be asleep or unconscious.
¶ 72. Concerned about the man's condition, Lin-smeier knocked on the window attempting to get Jones' attention. Twice Jones responded to the knocking by hitting the accelerator with his foot causing the engine to rev loudly. Eventually, Linsmeier pounded on the window and yelled. He was about to break the glass when Jones awoke and rolled down the window.
¶ 73. Immediately, the officer smelled intoxicants on Jones' breath. He observed that Jones' eyes were glassy and dilated. He noticed that his speech was slurred. When Jones finally got out of the car,'he leaned against the vehicle to maintain his balance. He refused to answer a question about whether he had been drinking and he refused to submit to field sobriety tests. At that point, Officer Linsmeier arrested Jones for operating a motor vehicle while intoxicated.
¶ 74. Thereafter, Linsmeier conducted a search of Jones' person as well as his parked vehicle. He made the search incident to an arrest for operating a vehicle while intoxicated, and he seized cash, drug paraphernalia, and other items found during the search.
¶ 75. On February 5, 1997, Jones was charged with possessing drug paraphernalia in violation of Wis. Stat. § 961.573(1). In mid-March he responded by moving to suppress the evidence seized and asking for its return. He cited former Wis. Stat. § 161.55(2) in seeking return of the evidence.
¶ 76. On May 29, 1997, Circuit Judge Jack Aulik conducted a hearing on Jones' two-part motion. He found that Officer Linsmeier had probable cause for his *602search of the vehicle. He also denied Jones' motion to return the seized property on grounds that the property was contraband. He then set a jury trial on the pending drug paraphernalia charge. Sixty-seven days later, the drug paraphernalia charge was dismissed because Jones had been sent to prison for other offenses.
¶ 77. Although Judge Aulik ruled that the cash was contraband, he was reminded during the suppression/forfeiture hearing that there was an ongoing criminal case and that Wis. Stat. § 968.20(2) provides: "Property not required for evidence or use in further investigation, unless contraband.. .may be returned by the officer to the person from whom it was seized without the requirement of a hearing." At the time of the hearing, Judge Aulik could not have found that the property was not needed as evidence or that all proceedings in which it might be required had been completed. Wis. Stat. § 968.20(1)(a) and (b).
¶ 78. As I see it, the evidence at issue here was seized incident to a lawful arrest that had nothing to do with the Uniform Controlled Substance Act. Wis. Stat. ch. 961 (1995-96). There was no obligation on the part of the State to seek forfeiture of this evidence under Wis. Stat. § 961.555, and there was no authority for Jones to seek return of the seized property under Wis. Stat. § 961.55(3), particularly when a drug case supported by the evidence was still pending.
¶ 79. The majority acknowledges that the evidence was seized incident to an arrest for OWI. Majority op. at 571. The dissent, in asserting that Jones "had had property seized under Chapter 961," is factually mistaken. Dissent at 603. The case should have been decided without all the troublesome interpretation in Part II of the opinion.