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Probable Cause – Traffic Violation: Driving in Center Lane; Reasonable Suspicion – OWI

State v. Jerome Hoehne, 2009AP2561-CR, District 4, 9/15/10

court of appeals decision (1-judge, not for publication); for Hoehen: Bill Ginsberg; BiC; Resp.; Reply

Probable Cause – Traffic Violation: Driving in Center Lane

Driving in the center lane of a 3-lane highway did not support probable cause to arrest for a traffic violation:

¶8        On appeal, the parties agree that the circuit court erred as a matter of law in determining that the undisputed facts showed Hoehne had committed a violation of WIS. STAT. § 346.13(2). We agree with the parties that the facts do not indicate a violation of this statute. Section 346.13(2) prohibits driving in the center lane of the three lane highway except: (a) “when overtaking and passing another vehicle where the roadway is clearly visible and such center lane is clear of traffic within a safe distance”; (b) “in preparation for a left turn”; or (c) “where such center lane is at the time allocated exclusively to traffic moving in the direction the vehicle is proceeding and is marked or posted to give notice of the allocation.” It is undisputed that the lane in which Hoehne was driving, the center lane of Highway 61, was “allocated exclusively to traffic moving in the direction” in which Hoehne was proceeding. Accordingly, his conduct was not contrary to § 346.13(2).

Reasonable Suspicion – OWI

Reasonable suspicion to believe the driver was intoxicated was not supported, where the car varied in speed between 48 and 55 mph; made a single, within-lane sideways movement; at a late hour, ¶12:

… Hoehne’s driving, which included a single movement from one side of his lane to the other and a variation in speed of 48 to 55 miles per hour, was not out of the ordinary. The seven-mile-per-hour variation in Hoehne’s speed was not marked, and was explained in part by the fact that Hoehne’s vehicle was ascending a hill. The combination of this relatively small degree of variation in speed under these circumstances and the single movement within a standard-sized lane does not constitute “unusual” driving.

State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634; State v. Waldner, 206 Wis. 2d 51, 556 N.W.2d 681 (1996), distinguished.

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