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Crossing fog line and pulling into closed business at 1:30 a.m. is reasonable suspicion of OWI

County of Marathon v. Armin James Balzar, 2016AP1471, 3/14/17, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Balzar argues on appeal that the stop of his vehicle was not supported by reasonable suspicion because it was based on the “act of simply turning into a closed business parking lot, without more.” (¶8). The court disagrees.

Balzar’s argument relies on an incomplete recitation of the facts. Bean testified she saw Balzar’s vehicle cross over the fog line at about 1:30 a.m., which we note is shortly before “bar time.” Based on that observation, Bean was concerned enough about Balzar’s driving to turn her marked squad car around and follow his vehicle. Shortly after she did so, Balzar turned into the parking lot of a closed business and parked his vehicle. On these facts, Bean could reasonably infer that Balzar pulled into the parking lot in attempt to avoid law enforcement contact. That reasonable inference, when combined with the time of night and Bean’s previous observation of Balzar’s vehicle crossing the fog line, gave rise to a reasonable suspicion that criminal activity, or as here, wrongful activity, was afoot—specifically, that Balzar was operating while intoxicated.

(¶9 (citations omitted)).

Balzar argues that the officer testified she relied only on his pulling into the lot, but that goes nowhere because reasonable suspicion is an objective standard. (¶10). The court goes on to observe that it has held, in the unpublished but citable City of Mequon v. Cooley, that pulling into the parking lot of a closed movie theater at 2:20 a.m. supported reasonable suspicion. (¶11).

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