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Circuit court’s prerogative to credit only part of officer’s testimony dooms challenge to traffic stop

State v. Dustin M. Sherman, 2016AP2225, 10/5/17, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Sherman argued that police lacked reasonable suspicion to conduct the traffic stop that led to his refusal to submit to a blood alcohol test. The officer stopped him for a violation of the statute requiring a tail lamp to emit a red light plainly visible from a distance of 500 feet to the rear. §347.13(1). When asked how close he had to get before he could see Sherman’s tail lamp, the officer said “I couldn’t tell you but it was less than 500 feet.”

Elsewhere the officer testified that the tail lamps were dim but clearly visible. Furthermore, a retired police officer testified that he was able to see the tail lamps from 1,500 feet. Too bad says the court of appeals:

¶9 . . . [E]ven if the officer’s testimony was inconsistent, that inconsistency was for the circuit court to resolve.  See State v. Anson, 2004 WI App 155, ¶24, 275 Wis. 2d 832, 686 N.W.2d 712 (“[T]he trial court has no obligation to believe everything a witness says, and when the record reveals inconsistencies within a witness’s testimony …, the court as fact finder determines the weight and credibility accorded to the testimony.”), aff’d, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776.
¶10 . . . [I]t is plain that the circuit court reasonably declined to give weight to the retired officer’s testimony because Sherman failed to establish that conditions surrounding the retired officer’s observations were similar to those that existed at the time of the stop in this case.   ’


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