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Traffic Stop – OWI

State v. Brittany A. Meye, No. 2010AP336-CR, District II, 7/14/10

court of appeals decision (1-judge, not for publication); for Meye: Kevin G. Keane; BiC; Resp.; Reply

¶6        Meye argues that the odor of intoxicants alone is insufficient to raise reasonable suspicion to make an investigatory stop. We agree. We will not cite, chapter and verse, all the many cases in this state where either we or our supreme court found facts sufficient for an investigatory stop. Suffice it to say that these decisions, both published and unpublished, include an officer or a citizen having observed traffic violations, erratic driving, mechanical defects with the vehicle, unexplained accidents or multiple indicia of physical impairment. Not one of these cases has held that reasonable suspicion to seize a person on suspicion of drunk driving arises simply from smelling alcohol on a person who has alighted from a vehicle after it has stopped—and nothing else. As we already stated, the officer in this case observed no traffic violations, no erratic driving, saw no mechanical defects or had any other information from which to justify the seizure.

The odor of intoxicants was “strong,” ¶2, but as just seen, still not enough for a stop. Bit of ambiguity in that the officer couldn’t link the odor to driver as opposed to passenger — if he could have, would that have been enough? The court suggests not — “The weakness of this seizure is exacerbated by the fact that the officer was not sure from which person the odor of alcohol was coming from or if it was coming from both persons,” ¶9 — but doesn’t say as much explicitly.

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