There was reasonable suspicion to stop of Chiarell’s car based on two lane deviations during early morning hours and, based on observations the officer made after the stop, there was probable cause to arrest Chiarelli for OWI.
At 2:51 a.m. Officer Graycarek saw Chiarelli’s car deviate into a right-turn lane without making a right turn and then deviate again into the area close to the curb; the car didn’t hit the curb, but its tires kicked up dirt and debris before returning to its traffic lane. After stopping the car Graycarek noticed signs of intoxication. Chiarelli refused to do field sobriety tests, was arrested, and refused a breath test. (¶¶2-4). At a refusal hearing he challenged the lawfulness of the stop and arrest. The circuit court rejected his challenges and the court of appeals affirms.
The evidence at the refusal hearing included the squad car video, and when the record consists of disputed testimony and a video recording the clearly erroneous standard of review applies to the trial court’s findings of fact. State v. Walli, 2011 WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898.
¶8 We have reviewed the video from Chiarelli’s refusal hearing and conclude that it shows the trial court’s factual findings, which were based on Graycarek’s testimony, were not clearly erroneous. While the images on the video are not explicitly clear, it does appear that Chiarelli’s vehicle moves to the right into the turn lane near the sign for Homestead High School and thereafter does appear to raise dust or debris as it comes close to the curb on Mequon Road. Based upon the sworn testimony of all witnesses and the squad camera video, we conclude the court’s factual findings are not clearly erroneous.
While State v. Post, 2007 WI 60, ¶¶19, 37, 301 Wis. 2d 1, 733 N.W.2d 634, acknowledged that “weaving within a single lane can be insignificant enough that it does not [alone] give rise to reasonable suspicion,” the test for a stop and arrest looks at the totality of the circumstances. Under that test, the stop and arrest of Chiarelli were lawful:
¶12 In this case, Chiarelli’s deviations from his lane of traffic on two occasions within a short distance, once nearly striking the curb, at close to 3 a.m., constitute specific and articulable facts that suggest impairment and from which a reasonable officer could infer that something unlawful might be afoot warranting a brief investigatory stop. Following this lawful stop, Graycarek’s additional observations of the smell of alcohol upon Chiarelli, Chiarelli’s bloodshot and glossy eyes, and Chiarelli’s refusal to perform field sobriety tests, see State v. Babbitt, 188 Wis. 2d 349, 359-60, 525 N.W.2d 102 (Ct. App. 1994), provided her with probable cause to arrest Chiarelli for operating while intoxicated. ….