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Reasonable Suspicion – Basis – OWI – Time of Day, Erratic Driving

State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion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

Issue / Holding:

¶26      In the case at hand, the officer had reasonable suspicion that the defendant was operating a motor vehicle while intoxicated. Similar to the specific and articulable facts observed by the officer in Post, the officer in this case made the following observations over the course of approximately one block at 1:30 a.m.: The defendant was driving with three-quarters of the vehicle left of the center of the road; the vehicle then moved back into the proper lane but almost hit the curb; the defendant’s vehicle then faded back towards the middle of the road and nearly struck the median. Under the totality of the circumstances, we conclude that the accumulation of these facts gives rise to a reasonable suspicion that the defendant was operating a motor vehicle while intoxicated.

¶27      The defendant, relying on Post, argues that the officer’s observations did not support reasonable suspicion because the observations were too few and not detailed enough. The defendant’s argument is unpersuasive because under our totality of the circumstances approach, there was ample proof adduced to justify reasonable suspicion. Therefore, the potential inadequacies set forth by the defendant do not undermine the totality of the other facts that support reasonable suspicion. Moreover, the facts of this case support a reasonable suspicion determination even more than those facts from Post, given that in this case the officer observed a traffic code violation, the events took place at 1:30 a.m., the events occurred within one block, and there was erratic driving. As a result, the defendant’s assertions and his reliance on Post do not support his argument.


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