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Moving driver six miles to do FSTs was reasonable

County of Dodge v. Alexis N. Unser, 2016AP2172, 4/6/17, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Unser wasn’t unlawfully moved outside the “vicinity” of the traffic stop when the officer transported her six miles to conduct field sobriety tests.

Unser was stopped after 9:00 p.m. in a rural area. It was cold with blowing snow, the roads were snow- and ice-covered, and Unser was wearing a short dress and thin coat. The officer decided to take her to a local hospital six miles away to have her perform the sobriety tests. (¶3).

Under § 968.24 an investigatory detention must be conducted in the “vicinity” of the stop, and “vicinity” is commonly understood to mean “‘a surrounding area or district’ or ‘locality.’” State v. Quartana, 213 Wis. 2d 440, 446, 570 N.W.2d 618 (Ct. App. 1997); State v. Blatterman, 2015 WI 46, ¶¶24-27, 362 Wis. 2d 138, 864 N.W.2d 26. Blatterman‘s seems to draw a bright line at 10 miles, and State v. Doyle, No. 2010AP2466-CR, ¶13, unpublished slip op. (Wis. Ct. App. Sept. 22, 2011), suggests 3 to 4 miles is “at the outer limits of the definition of ‘vicinity,'” but the court of appeals rejects Unser’s claim she was moved too far:

¶12     To begin, I am not bound by Doyle and do not find its “outer limits” commentary persuasive. See Wis. Stat. Rule 809.23(3)(b). In a rural area, why is a three- or four-mile drive significantly different from a five- or six-mile drive? I see little sense in saying that, in a rural area, three or four miles is okay but six is not. More to the point, neither Doyle nor Blatterman supports the proposition that six miles is always too far. On the contrary, Doyle’s underlying reasoning actually supports a conclusion that a six-mile distance may be permissible depending on the circumstances and, in particular, depending on whether there is no location that is closer where the officer can reasonably conduct field sobriety tests. The Doyle court relied not only on the weather conditions and rural area of the stop, but also on undisputed evidence that the suspect was transported to the closest location where the officer could reasonably conduct field sobriety tests. See Doyle, No. 2010AP2466-CR, ¶13; ….

¶13     Similarly, here the officer’s testimony showed that the officer transported Unser to the closest location where the officer could reasonably conduct field sobriety tests, Waupun Memorial Hospital. The officer acknowledged in testimony that there were two other closer locations with shelter, but the officer determined that neither was suitable. One location was a tavern very close to the initial stop; the other was a 24-hour Wal-Mart distribution center that the officer knew was not open to the public and that was located 4½ miles away in the opposite direction from the hospital. Based on this testimony, there was no reason to think that either of these two locations was suitable.

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