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Six miles of “jerky” weaving + 3:00 a.m. = reasonable suspicion

Columbia County v. Brittany N. Krumbeck, 2015AP1010, 1/14/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

In State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, our supreme court rejected the notion that “repeated weaving” within a lane, without more, amounts to reasonable suspicion for a traffic stop. Krumbeck invokes Post to attack her OWI conviction but the court of appeals concludes there were enough other facts to justify the stop.

In particular, the officer’s testimony here showed that, in addition to the in-lane weaving that Post declared was by itself insufficient, we have the following factors:

1. The weaving occurred around 3:00 a.m., a time when a higher percentage of intoxicated drivers are on the road. See id., ¶36 (poor driving around “bar time” is suspicious).

2. Krumbeck repeatedly made sharp or jerky corrections as she approached the center line and the fog line. That is, Krumbeck was not merely weaving.

3. Krumbeck continuously weaved over a prolonged period of time, a type of circumstance that the Post court acknowledged may count as a suspicious factor in addition to the fact of weaving itself. See id., ¶25 (courts point to factors such as pronounced or prolonged weaving as supporting reasonable suspicion).

(¶5).

The court also rejects as insufficiently developed Krumbeck’s argument that there was no probable cause for her eventual arrest. The discussion makes clear that the insufficiency is really a failure to acknowledge the facts supporting probable cause. (¶¶9-11).

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