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OWI — reasonable suspicion for traffic stop and OWI investigation

State v. Tony L. Wyatt, 2013AP728-CR, District 2, 8/28/13; court of appeals decision (1-judge; ineligible for publication); case activity

A sheriff’s deputy stopped the car Wyatt was driving after checking the license plate of a car driving in front of the deputy and determining the car’s owner—a female—didn’t have a valid driver’s license. If the deputy didn’t know before the stop that the driver was male, the stop was lawful under State v. Newer, 2007 WI App 236, ¶2, 306 Wis. 2d 193, 742 N.W.2d 923 (officer’s knowledge that a car owner’s license is invalid supports reasonable suspicion to stop “so long as the officer remains unaware of any facts that would suggest that the owner is not driving.”). Disputing the deputy’s version of events, Wyatt and two passengers testified the deputy knew the car was not being driven by the female car owner because the deputy had initially been going in the opposite direction and would have seen Wyatt was a male before turning around to follow and stop him.

The trial court found the testimony of Wyatt and his witnesses “suspicious” and incredible, and instead believed the deputy. The court of appeals must give deference to the trial court’s credibility determinations, Johnson v. Merta, 95 Wis. 2d 141, 151-52, 289 N.W.2d 813 (1980), and it affirms the trial court’s belief of the deputy, for which there is “ample basis” in the record. (¶¶10-13).

The deputy also had reasonable suspicion to extend the traffic stop to investigate whether Wyatt was operating while intoxicated based on the odor of intoxicants, Wyatt’s glassy, red eyes, his admission he had drunk a couple of beers, and the time of the stop (4:00 a.m.). (¶¶15-16). These facts also allowed the deputy to conduct field sobriety tests because reasonable suspicion, not probable cause, is the standard applicable to FSTs under State v. Colstad, 2003 WI App 25, ¶19, 260 Wis. 2d 406, 569 N.W.2d 394. (¶17).

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