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Court of appeals affirms circuit court’s fabrication of “oh shit” moment in speeding case

State v. Chris K. Feller, 2019AP318, 11/27/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

This appeal poses an interesting question of law: whether the justification defense available in certain civil forfeiture actions applies where a driver exceeds the speed limit in order to get away from another driver who is dangerously tailgating him on the freeway.  See State v. Brown, 107 Wis. 2d 44, 318 N.W.2d 370. The court of appeals contorts the undisputed facts in order to duck the issue.

Feller’s undisputed testimony was that he drove 81 mph in a 70 mph zone because he was being dangerously tailgated by a car immediately behind him. He pulled ahead of the trooper in the right lane and then moved to the right lane. The car behind him passed the trooper and Feller. The trooper pulled over Feller, not the tailgater.

After hearing testimony from the trooper and Feller, the trial court held that Feller was “probably the lead car” in a two-car speeding caravan and then discovered “Oh shit. There is a cop.” According to the court of appeals, this meant that the trial court “implicitly credited” the trooper’s testimony. Opinion, ¶¶7-8. Although the court of appeals omits the point, Feller’s brief highlights the trooper’s admission that the car behind Feller could have been tailgating him. Also, nobody testified to an “oh shit” The trial court simply made it up. Reply Brief.

Two observations: The court of appeals strains mightily to avoid the question of law. If you’ve ever been tailgated on the interstate, you probably want to know the answer to it. Second, enough with “implicit findings.” The court of appeals’ job isn’t to uphold trial courts at all costs. Either trial courts make the factual findings they’re required to make, or they get reversed. That’s the only way to stop their stop their mis, mal, or non-feasance.


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