State v. Timothy M. Pence, 2010AP1944-CR , District 4, 3/24/11
court of appeals decision (1-judge, not for publication); for Pence: Jessica Jean Giesen, Charles W. Giesen; case activity
Stop of Pence’s vehicle upheld, even if Pence was violating no specific traffic law, on reasonable suspicion he was driving while intoxicated:
¶11 The totality of the circumstances in this case supports the reasonableness of Deputy Miller’s investigative stop. Deputy Miller has received OWI training as a law enforcement officer and has significant experience in arresting intoxicated drivers. The stop took place just after 2 a.m., close to closing time for liquor establishments. Deputy Miller observed Pence weave at least five times while following him over one-and-a-half to two miles. The video from Deputy Miller’s squad car shows Pence’s vehicle weaving. Deputy Miller testified that, in his experience, if a driver is weaving at this time of day, it is highly probable that the individual is operating while intoxicated. Taking these circumstances together, we conclude it was reasonable for Deputy Miller to suspect that Pence was driving while intoxicated and to initiate an investigative stop.
State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634 (weaving within single lane not enough for reasonable suspicion), distinguished: “Post requires us to look at the totality of the circumstances; it does not establish a minimum set of facts that subsequent cases must match in order to be deemed reasonable suspicion,” ¶12.
