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Reasonable Suspicion – Traffic Stop; OWI – Habitual Offender – Collateral Attack

State v. Randall L. Wegener, 2010AP452-CR, District 1, 8/18/10

court of appeals decision (1-judge, not for publication); for Wegener: Kirk B. Obear; BiC; Resp.

Reasonable Suspicion – Traffic Stop

Inclement winter weather didn’t obviate the need to stay within the proper lane, such that crossing the center line, even briefly a few times, provided reasonable suspicion to perform a traffic stop.

¶6        Wegener argues that Fabry did not have reasonable suspicion to conduct a traffic stop because he was driving appropriately for part of the time he was followed and blames his lack of control of his vehicle on the snowy weather conditions. Wegener’s ability to drive appropriately for part of the two miles the deputy was following him, however, does not negate the fact that Fabry observed him crossing the center line, even if only briefly a few times. See State v. Popke, 2009 WI 37, ¶26, 317 Wis. 2d 118, 765 N.W.2d 569 (even if not erratically driving inside or outside of designated lane, a momentary swerve over the center line gives rise to reasonable suspicion to conduct a traffic stop). The circuit court found that the weather did not excuse Wegener’s lane deviations:

The road conditions, weather, low snow condition, low blowing snow, minimal blowing snow, none of those things, in my view, would provide a legal basis to deviate from his lane of traffic. As the officer testified, he had no problems seeing. I think that would be true for the defendant as well.

¶7        Based on the above, we conclude that the officer had reasonable suspicion to conduct a traffic stop of Wegener’s vehicle. Officer Fabry was justified in believing that Wegener was impaired when he saw him operating his vehicle left of center several times at 1:00 a.m. in violation of Wis. Stat. §§ 346.05(1) and 346.13(1). [5] See Post, 301 Wis. 2d 1, ¶13.

Popke and Post involved OWI stops: Popke veered wildly between median and curb; Post weaved across travel and parking lanes, creating “a discernible S-type pattern.” In neither case, though, could weather have been considered a contributing factor. But the trial court’s findings, recited above, indicate that the snow condition could have had no more than minimal impact on Wegener’s driving.

OWI – Habitual Offender – Collateral Attack

The trial court’s findings of fact, after conducting an evidentiary hearing, establish that Wegener properly waived counsel in a prior OWI case, hence the conviction in that case can be used to enhance the current one.

¶16      Wegener’s challenge to the circuit court’s finding is essentially that the State failed to prove that he understood the role an attorney would play in the context of an OWI proceeding, i.e., that the attorney could challenge the admissibility and accuracy of chemical test results and the administration of field sobriety testing; question the State’s compliance with the Implied Consent Statute, Wis. Stat. § 343.305; examine the application of a “curve defense”; and challenge reasonable suspicion. However, the law does not require this level of specificity. The record reflects that, at the time of his 2002 plea, Wegener was aware that he had the right to an attorney. Wegener was aware of his Miranda[9] rights, including the right to counsel, before going to court. He filled out a “survey of rights” form, which he acknowledged contained a constitutional right to an attorney. He agreed that he took the time he needed to feel comfortable signing the form. He was read, and he understood that there was, a range of penalties, and he understood that the judge did not have to follow the guideline recommendations when sentencing. He observed that other defendants appeared with attorneys, and he was familiar with the function of attorneys and that they “help you.” His testimony supports the court’s finding that Wegener understood that lawyers are advocates who work on their client’s behalf for better outcomes, in both civil and criminal cases. In the end, the circuit court found that Wegener’s suggestion that he was not aware of the disadvantages of self-representation was not credible.

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