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Traffic stops — reasonable basis to prolong traffic stop to conduct field sobriety tests

State v. Richard H. Hogenson, 2013AP389-CR, District 3, 10/15/13; court of appeals decision (1-judge; ineligible for publication); case activity

Though it is “a very close case” (¶14), the court of appeals holds an officer had reasonable suspicion to extend a traffic stop based on a burned-out headlamp and conduct field sobriety tests:

¶15      In this case, at the moment [Officer] Jenatscheck requested that Hogenson participate in field sobriety tests, Jenatscheck knew he had stopped a vehicle at approximately 10:00 p.m. on a Saturday night. See State v. Lange, 2009 WI 49, ¶32, 317 Wis. 2d 383, 766 N.W.2d 551 (It is common knowledge “that people tend to drink during the weekend when they do not have to go to work the following morning.”); [State v.Post, 2007 WI 60, ¶36[, 301 Wis. 2d 1, 733 N.W.2d 634] (time of night, even 9:30 p.m., “lend[s] some further credence” to impairment determination). Jenatscheck also knew there was an odor of intoxicants emanating from Hogenson’s person, Hogenson admitted to consuming alcohol, and Hogenson had difficulties removing his driver’s license from his wallet…. Based on the facts present in this case and the rational inferences derived from these facts, it would be reasonable for Jenatscheck to suspect that, on a weekend night, a person who smelled of intoxicants, admitted to consuming alcohol, and fumbled with his or her wallet was operating while intoxicated.

Hogenson’s trial lawyer apparently challenged only the initial stop, not its extension, so the suppression hearing testimony didn’t cover events after the initial stop, like Hogenson’s fumbling to retrieve his license. That testimony came at trial. Hogenson objects to consideration of trial testimony to resolve the suppression issue, but the court rejects his argument as undeveloped. (¶15 n.5). It is also foreclosed by State v. Griffin, 126 Wis. 2d 183, 198, 376 N.W.2d 62 (Ct. App. 1985) (when reviewing a suppression order, an appellate court is not limited to the suppression hearing record; it may also examine the trial evidence), aff’d, 131 Wis. 2d 41, 388 N.W.2d 535 (1986), aff’d sub. nom. Griffin v. Wisconsin, 483 U.S. 868 (1987).

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