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County of Milwaukee v. Caleb L. Manske, 2009AP1779, District I, 6/8/10

court of appeals decision (1-judge; not for publication); for Manske: Jennifer R. Drow; BiC; Resp.; Reply

Traffic Stop – Reasonable Suspicion

¶16     Manske submits that because his driving was in some respects not consistent with an impaired driver, Galipo did not have reasonable suspicion to stop him. However, the test for reasonable suspicion is not whether all of the driver’s actions constituted erratic driving. Rather, the test is whether some of the truck’s movements gave rise to a reasonable suspicion that the driver may be impaired. Here, Galipo’s attention was drawn to Manske when he touched the fog line. Upon following the truck, Galipo saw the truck being driven close to the fog line and drifting within the lane. When Manske exited the ramp, Galipo saw the pickup truck actually cross the fog line. At this point, Galipo decided he had reasonable suspicion to stop the pickup truck. These observations fell well within the standard of “specific articulable facts and reasonable inferences from those facts” to create a reasonable suspicion that the pickup driver was violating the law. See Gammons, 241 Wis. 2d 296, ¶6.

Probable Cause to Arrest – OWI

Alcohol on breath + red, bloodshot eyes + “thick” speech + admission of having 4 drinks + field sobriety test failures = probable cause to arrest for drunk driving, ¶¶4, 19-21.

Sanctions – Violating Appellate Rules

Counsel is fined $150 for “multiple violations of the procedural rules,” ¶8 n. 5.

Counsel referred to “several rogue documents,” which is to say documents “not introduced into evidence below.” The court orders these documents stricken: “Assertions of fact in a brief that are not part of the record will not be considered on appeal. See Nelson v. Schreiner, 161 Wis. 2d 798, 804, 469 N.W.2d 214 (Ct. App. 1991).” Indeed, the court of appeals has long cautioned against referring to matters outside the record, State v. Aderhold, 91 Wis. 2d 306, 314-15, 284 N.W.2d 108 (Ct. App. 1979) (“any future indulgence in such practice will evoke more than a reprimand from this court”). But what apparently provoked the court’s ire was less the roguish references than repetitive reliance on uncitable cases. The no-cite rule has been changed, R. 809.23(3)(b) but as this result illustrates retains a number of restrictions which the court can and will enforce (including per curiams and unpublished cases released prior to July 1, 2009). Moreover, the court stresses that when properly citing to an unpublished case, the litigant should “alert[] the reader that it is being cited for persuasive value only.” One troubling matter: the court imposed the $150 fine without opportunity to be heard. No doubt the violations were plain, but isn’t there a due process right to argue whatever might be mustered by way of mitigation? Something in the nature of the right of allocution? “A fundamental tenet of American law is that folks have a right to be heard ‘at a meaningful time and in a meaningful manner’ before they may be deprived of a property interest. Mathews v. Eldridge, 424 U.S. 319, 333-335 (1976) (quoted source omitted); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).” Columbia Casualty Company v. Appleton Papers Inc., 2009AP206, ¶100, 6/8/10 (Fine, J. dissenting). Different context, to be sure, but why isn’t the larger principle the same? Why shouldn’t an attorney be entitled to be heard, if nothing else on the amount, before being deprived of $150? No need to cast about for an answer, it’s a rhetorical question.

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