Although a judge threw out the ethnic intimidation charge filed against a Penn State student who allegedly targeted another student because of his ethnicity, District Attorney Stacy Parks Miller says her office plans to refile that felony charge. Parks Miller tweeted about he incident Friday afternoon:

Ethnic Intimidation charges refiled on Nicholas Tavella. Motion for new judge filed. #hatecrimeswillnotbetolerated

— DA StacyParksMiller (@StacyPMiller) December 11, 2015

Nicholas Tavella was charged earlier this week with a litany of crimes stemming from an incident in which he admitted to drunkenly following an Indian student home and threatening him because of his skin color. According to police reports, Tavella grabbed the student by the neck and said “don’t make me put a bullet in your chest.”

Of the charges initially filed against Tavella, ethic intimidation was the only felony. Tavella’s lawyer Wayne Bradburn cites “his love of country” and alcohol consumption as reasons for his client’s alleged behavior. Because an ethnic intimidation charge involves malicious intent — which requires a certain state of mind — it can be more difficult to prove if the perpetrator is drunk or otherwise not of a sound mind. At the request of Barburn, District Judge Allen Sinclair threw out the ethnic intimidation charge yesterday because of a perceived failure to prove the requisite intent.

Parks Miller’s tweet indicates a desire to assign another judge to the case and refile the felony charge against Tavella.