Police did not have reasonable suspicion to believe Michals was operating while intoxicated or in a “disorderly manner” in violation of a city ordinance.
Police saw Michals’s vehicle stopped at a red light at 9:11 p.m. When the light changed, Michals accelerated quickly (though the officer could not say how fast she was going) and abruptly swerved three times within her lane (according to Michals’s credible suppression hearing testimony, she was swerving to avoid pot holes and construction). The officer followed Michals, who signaled and turned right and then signaled another right turn; before she made the second turn the officer stopped her. The officer said he believed Michals may have been intoxicated or violating West Allis ordinance § 6.03(4)(a), “disorderly conduct with a motor vehicle.” (¶¶2-6).
Distinguishing State v. Waldner, 206 Wis. 2d 51, 556 N.W.2d 681 (1996), State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, and State v. Anagnos, 2012 WI 64, 341 Wis. 2d 576, 815 N.W.2d 675, the court of appeals holds the officer’s observations didn’t add up to reasonable suspicion of either violation:
¶17 In Anagnos, the driver crossed an elevated median, twice accelerated rapidly, and executed a left turn without signaling. Anagnos, 341 Wis. 2d 576, ¶¶57-58. Moreover, in Waldner, the driver travelled at a slow rate of speed, stopped at an uncontrolled intersection, accelerated at a high rate of speed, and once he stopped the vehicle, poured liquid and ice onto the ground. Waldner, 206 Wis. 2d at 60-61. Finally, in Post, the driver appeared to be “moving between the roadway centerline and parking lane,” which “is not slight deviation within one’s own lane.” Post, 301 Wis. 2d 1, ¶29. There was also evidence of the vehicle’s “drifting and unusual driving.” Id. In each of these cases, there was evidence of other activity besides accelerating quickly and swerving within a single lane of traffic.
¶18 In the present case, Michals is alleged to have accelerated quickly after a light turned from red to green and swerved three times in her own lane. Michals never hit a curb or median, maintained a single lane of travel, and never deviated into the parking lane. No evidence was presented that Michals crossed the centerline. Furthermore, Michals signaled each of her turns. We conclude, therefore, that Michals’[s] quick acceleration and swerving within her own lane are insufficient on their own to give rise to reasonable suspicion that Michals was operating her vehicle while under the influence or in violation of … § 6.03(4)(a).
The City also argues Michals was trying to avoid the officer, but the evidence doesn’t support that conclusion. The officer didn’t know how fast she was going, or where she was going or why, and the driving the officer observed doesn’t by itself give grounds to suspect Michals was trying to avoid him. (¶21). And while the time of day is part of the totality of the circumstances that might lend credence to suspicion of OWI, it adds nothing in this case. (¶24).