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Arrest – Probable Cause – Specific Examples: Traffic Violation – Deviating from Center Line, § 346.05

State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion
For Popke: John Miller Carroll, Aaron W. Schenk

Issue/Holding: Police had probable cause to believe Popke violated § 346.05, driving on right-side of highway:

¶16      In this case, the officer testified that he was sitting at a stop sign when the defendant turned left onto the road directly ahead of where the officer was sitting. The officer immediately began following the car and his view was not obstructed at any time. The defendant initially turned into the correct lane of traffic. However, the defendant subsequently “swerved” into the left lane of traffic and that resulted in the defendant’s vehicle being three-quarters left of the center of the road, which was identified by a black strip of tar.¶17      Based on this testimony, we conclude that the police officer had probable cause to believe a traffic code violation had occurred, namely operating left of center pursuant to Wis. Stat. § 346.05, and therefore, the traffic stop was reasonable. The officer watched as the defendant drove left of center, and as a result, the officer had probable cause to believe a traffic violation was being committed. Moreover, the circuit court concluded, and we agree, that none of the exceptions to this statute apply. See Wis. Stat. § 346.05(a)—(f). That is, there was nothing that required the defendant to drive left of center.

The court rejects the idea that “momentarily” crossing the center line is not “driving”:

¶18      Wisconsin Stat. § 346.63(3)(a) provides: “‘Drive’ means the exercise of physical control over the speed and direction of a motor vehicle while it is in motion.” The defendant’s actions are consistent with this definition, and thus, he was driving left of the center of the road in violation of Wis. Stat. § 346.05(1). The State posits an interesting question with regard to the defendant’s claim that he was not driving; if the defendant was not driving in the left lane, what was he doing? This question itself reflects the inherent flaw with the defendant’s argument.


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