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Traffic Stop – Reasonable Suspicion (OWI); Detention to Administer FST

State v. William M. Hughes, 2011AP647-CR, District 4, 8/25/11

court of appeals decision (1-judge, not for publication); for Hughes: Michael C. Witt; case activity

Traffic stop supported by reasonable suspicion to believe Hughes was operating while intoxicated:

  • The stop occurred at night, after a football game, when there is an increased frequency of drunk driving;
  • Citizen informant reported observing vehicle weaving outside lane of travel on Interstate, and provided full license number and location on highway;
  • Trooper then followed car 2.5 miles, and saw it drift several times back and forth between center and fog lines, and drive onto the shoulder over the fog line.

The citizen caller’s report of erratic driving was both reliable and suggestive of intoxicated driving, ¶16, citing State v. Rutzinski, 2001 WI 22, ¶¶32, 34, 241 Wis. 2d 729, 623 N.W.2d 516. The fact that the officer did not himself observe any traffic infractions didn’t prevent him from forming reasonable suspicion of impaired driving:

¶18      When the trooper’s own observations are combined with the observations of the citizen caller, and the time of night, and the trooper’s knowledge of the increase in driving while intoxicated after sports events, we are satisfied that a reasonable officer could reasonably suspect that the driver of this vehicle was driving while impaired by alcohol.  See State v. Lange, 2009 WI 29, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (“[T]he time of night is relevant.  [The officers] … encountered the defendant about when Saturday night bar-time traffic arrives ….  It is a matter of common knowledge that people tend to drink during the weekend when they do not have to go to work the following morning.”).  See also Post, 301 Wis. 2d 1, ¶36 (While a time of 9:30 at night is not as significant as “bar time,” it nonetheless “does lend some further credence to … suspicion that [the driver] was driving while intoxicated.”).

For purposes of the OWI calculus, then, heading out of Madison after a Badger game – “a sporting event,” in the court’s somewhat formal parlance – serves the same purpose as the better-known “high-crime” variable. (“It is common knowledge among state troopers that after a sporting event there is an increased likelihood of drivers under the influence of alcohol,” ¶3.) Basketball, too? Bucky, in his infinite wisdom, has eliminated baseball – but does a Mallards game tilt the reasonable suspicion balance? In any event, we would some day like to see actual proof – facts, figures, data – in place of “common knowledge” among the constabulary.

¶21      Because we conclude that Trooper Samborski had a reasonable suspicion that Hughes was driving under the influence of an intoxicant, it was lawful for the trooper to stop Hughes to make reasonable inquiries in order to dispel or confirm that suspicion.  Terry, 392 U.S. at 22.  The additional information the trooper acquired after stopping Hughes—odor of alcohol, glassy eyes, and admission of drinking earlier—confirmed rather than dispelled the reasonable suspicion that Hughes was driving while intoxicated.  Thus, it was reasonable for Trooper Samborski to investigate further by requesting Hughes to perform field sobriety tests.  See Campshure, 204 Wis. 2d at 32 (Additional observations made after an initial stop based on reasonable suspicion of OWI made it reasonable to further investigate by requesting the driver to perform field sobriety tests.).  Contrary to Hughes’ argument, the fact that in other cases there may be more evidence of intoxication before field sobriety tests are administered does not mean that it was unreasonable for Trooper Samborski to administer the tests to Hughes.

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