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Failure of squad video to corroborate every detail of officer’s testimony doesn’t defeat trial court’s findings of fact

State v. Steven L. Udelhofen, 2013AP1244-CR, District 4, 11/14/13; court of appeals decision (1-judge; ineligible for publication); case activity

The circuit court’s findings of fact regarding the circumstances of the stop of Udelhofen are not clearly erroneous despite the fact that he squad car video didn’t corroborate all the details of the officer’s testimony regarding his observations, applying State v. Walli, 2011 WI App 86, ¶¶16–18, 334 Wis. 2d 402, 799 N.W.2d 898 (when evidence in the record includes disputed testimony together with a video recording that may be viewed by the appellate court, the circuit court’s findings of fact based on that recording are reviewed under the clearly erroneous standard).

¶15      …. Udelhofen argues that reasonable suspicion did not exist because the squad car video does not corroborate the officer’s testimony by clearly showing Udelhofen’s vehicle taking the turn onto Lueders Road too fast, “fishtailing,” weaving, or otherwise driving erratically. Udelhofen contends that, because the video does not affirmatively corroborate the officer’s testimony, the circuit court erred in relying on the officer’s testimony in determining that the officer had reasonable suspicion of impairment to justify the stop.

¶16      My review of the squad car video in the record confirms the view of the circuit court. As I view it, the video is too dark and shows the vehicle too far in the distance (that is, shows the vehicle as too small on the screen) to reveal relevant details of Udelhofen’s driving. This is consistent with the circuit court’s finding that the video neither substantiates all of the officer’s testimony regarding Udelhofen’s driving nor undermines any particular aspect of the testimony. Applying our standard of review from Walli, this defeats Udelhofen’s apparent argument that the circuit court’s findings are clearly erroneous because they are undermined by or not supported by the video images.

And the facts found by the circuit court support its holding there was reasonable suspicion. The facts established the following events occurring within a short time frame on a Friday evening: the sliding or fishtailing during one right-hand turn, followed by the weaving within the lane, followed by the two more wide turns, followed by the failure to promptly pull over in response to the emergency lights. (¶¶3-6, 12, 17). “This combination of events in quick succession, and particularly beginning with a visible slide that the court found resulted from turning the corner too fast, easily amounts to reasonable suspicion under [State v.Post[, 2007 WI 60, ¶13, 301 Wis. 2d 1, 733 N.W.2d 634].” (¶17).

The court of appeals notes what it characterizes as two “troubling inaccuracies” in Udelhofen’s briefs; though the court says it is “not in a position to suggest that these inaccuracies arise from an intent to mislead the court” it reminds counsel that “zealous advocacy is still accurate advocacy.” (¶18 n.7).

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