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Reasonable Suspicion – Traffic Stop – Crossing Fog Line

State v. Jordan T. Griffith, 2011AP2226-CR, District 2, 2/15/12

court of appeals decision (1-judge, not for publication); for Griffith: Walter Arthur Piel, Jr.; case activity

¶5        In order for an investigatory stop to be justified by reasonable suspicion, the officer must have a “‘particularized and objective basis’ for suspecting the person stopped of criminal activity.”  State v. Walli, 2011 WI App 86, ¶9, 334 Wis. 2d 402, 799 N.W.2d 898 (citation omitted).  The officer’s reasonable suspicion that an individual was or is violating the law must be grounded in specific and articulable facts and reasonable inferences from those facts.  Id.  We examine the totality of the circumstances to determine if there was reasonable suspicion.  Id. 

¶6        Griffith’s only argument on appeal is that there was not enough evidence to support the circuit court’s finding that Deputy Luker had reasonable suspicion.  The record contains sufficient evidence to support the circuit court’s finding.  Luker testified that Griffith crossed over a fog line by about six inches on the right side of the road and that Griffith crossed over the center line of traffic.  Griffith complains that Luker did not mention “whether the movements were gradual or abrupt, or for a short or longer distance.”  Those facts are not dispositive as to the question of whether there was reasonable suspicion under the totality of the circumstances.  Given the erratic nature of Griffith’s driving, it was reasonable for Luker to suspect that Griffith was drinking and driving.  Griffith’s conviction is affirmed.

There appears to be some doubt as to whether merely traversing a fog line in and of itself violates the traffic code, see, e.g., unpublished opinions, State v. Kind, 2011AP1875-CR (12/29/11) (assuming without deciding no such violation, but finding reasonable suspicion otherwise, ¶10), and State v. Tadych, 2009AP1912-CR (2/3/10) (State argued that § 346.13(3) violated when fog line crossed; court doesn’t reach argument). Compare, however, Kenosha Co. v. Braune, 2010AP834 (3/9/11) (driving completely over fog line does violate statute). But whether or not itself a traffic code violation, partially crossing over the fog line certainly may – as here – help establish reasonable suspicion of impaired driving. Recent traffic stops based at least in part on crossing fog line may be found, here.

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