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Lit cigarette, red eyes, thick speech and speeding sufficient to establish reasonable suspicion of OWI

State v. Iain A. Johnson, 2022AP389-CR, 4/2/24, District III (1-judge decision, ineligible for publication); case activity

Although COA concedes this is a “close case,” it nevertheless concludes that the evidence satisfies the relatively low burden for reasonable suspicion to extend a traffic stop.

This police contact began when they received a “driving complaint” about Johnson’s vehicle, alleging that he was “speeding and weaving through traffic” on I-94. (¶4). Although the responding officer, Trooper Wojcik, did not observe any weaving, he clocked Johnson’s speed as 10 miles over the posted limit. (¶5). He therefore initiated a traffic stop and, while Johnson was pulling over, noticed that the car’s windshield was cracked. (Id.). Upon making contact with Johnson, the officer noticed that Johnson’s eyes were “red and glossy” and his speech “thick and a little bit slower.” (¶6). Although he did not smell any intoxicants, Johnson had a “freshly lit cigarette,” which Trooper Wojcik believed could be a “possible cover odor.” (Id.). After a second officer confirmed that he could not smell any intoxicants either, Trooper Wojcik decided to remove Johnson from the car to conduct field sobriety testing and to “ascertain” whether there was an odor emanating from his person. (¶8). The stop ended with an arrest and a charge for an OWI offense. (¶1).

On appeal, Johnson argues that police lacked reasonable suspicion to extend the stop when they asked him to get out of the car. (¶17). COA concedes that this is a “close case.” (¶19). Notably, it chooses not to consider whether the anonymous driving complaint can be considered in the reasonable suspicion calculus. (¶20 n.8). It also rejects as clearly erroneous one of the circuit court’s factual findings, that Johnson failed to promptly pull over when requested to do so by Trooper Wojcik. (Id.). However, it accepts the circuit court’s findings about Johnson’s eyes and speech and holds that these are factors which “contribute to reasonable suspicion of intoxication.” (¶20). (Notably, the fact that Johnson was wearing sunglasses during the encounter fails to give COA pause). These factors, coupled with the “freshly lit cigarette” (in conjunction with the Trooper’s testimony about cover odors) and Johnson’s speeding are sufficient to satisfy the “relatively low standard” of reasonable suspicion. (¶25). Thus, even though Johnson works through a laundry list of usual OWI-type evidence which was not at issue in this case, COA holds that these arguments are irrelevant given what Trooper Wojcik did observe. (Id).

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