Mecklenburg prosecutors are appealing a judge’s decision to throw out the drunken driving charge against Tim Newman, the former chief executive of the Charlotte Regional Visitors Authority.

In the notice of appeal, Assistant District Attorney Emily Kraper wrote that District Judge Kimberly Best’s decision was “contrary to the law.”

“The State contends that there is enough evidence to overcome the motion to dismiss and thereafter prove reasonable suspicion, probable cause, and a subsequent conviction of the defendant for the charge of driving while impaired,” the prosecutor wrote.

Newman’s attorney, Brad Smith, said he’s surprised at the state’s decision to appeal considering the facts of the case.

“In my experience this isn’t a close call,” Smith said. “Judge Best’s ruling was perfectly in line with decisions I see on a daily basis in Mecklenburg County in these types of cases.”

A Superior Court judge will now decide if Best made the right decision in throwing out Newman’s DWI charge.

Best, in dismissing the drunken driving charge on Nov. 5, ruled that Newman, 48, had been kept in jail too long after his arrest in May for DWI and hit-and-run.

It took deputies at the jail more than three hours on May 23 to release Newman after a magistrate had given him an unsecured bond.

The magistrate had set the bond at 1:15 a.m. But Newman didn’t get out of jail until 4:34 a.m.

“He should have been out within an hour,” the judge said in throwing out the DWI charge. “Instead, it took three hours.”

Because alcohol levels in the body drop over time, defendants in DWI cases are supposed to be released from jail as soon as possible after their arrests so they can gather evidence for their defense. That could include having friends and family observe their condition or obtaining a blood test as independent proof of sobriety.

The hit-and-run charge against Newman is still pending.

Newman was charged with DWI and hit-and-run on May 22, after an accident at Interstate 77 and LaSalle Street shortly after 10 p.m., N.C. Highway Patrol Trooper John Burgin said.

Burgin said there was stop-and-go traffic on I-77 because of another accident. Newman hit a vehicle, the trooper said. The driver of the other car stepped out of the vehicle, but Newman said everything was OK and drove off, according to Burgin. The other driver called police.

Burgin said the arresting officer believed Newman had been drinking. A roadside breath test produced a positive reading for alcohol.

A trooper testified during the Nov. 5 hearing that Newman, while at the jail, refused to blow into an Intoxilyzer – the instrument that registers alcohol levels.