State v. Timothy W. Bastian, 2012AP793-CR, District 3, 9/25/12
court of appeals decision (1-judge, ineligible for publication); case activity
The court holds, without resolving the issue of whether reasonable suspicion sufficed, that probable cause supported Bastian’s traffic stop for inattentive driving, given “the circuit court’s factual determination that Bastian was ‘looking towards the passenger seat’”:
¶10 Wisconsin Stat. § 346.89, titled “Inattentive driving,” provides in relevant part: “No person while driving a motor vehicle shall be so engaged or occupied as to interfere with the safe driving of such vehicle.” Wis. Stat. § 346.89(1). Probable cause to stop exists when the officer has “reasonable grounds to believe that the person is committing or has committed a [violation].” Popke, 317 Wis. 2d 118, ¶14 (citation omitted). The evidence to support probable cause “need not establish proof beyond a reasonable doubt or that … guilt is more probable than not, but rather, probable cause requires that ‘the information lead a reasonable officer to believe that guilt is more than a possibility.’” Id. (quoting Johnson v. State, 75 Wis. 2d 344, 348-49, 249 N.W.2d 593 (1977)).
¶11 Here, Valk observed that, while Bastian’s attention was diverted to his passenger seat, Bastian’s vehicle veered to the right and then swerved to the left two to four feet. These observations could lead a reasonable officer to conclude that Bastian was “so engaged or occupied as to interfere with the safe driving of … [his] vehicle.” See Wis. Stat. § 346.89(1). Valk therefore had probable cause to stop Bastian for inattentive driving.
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¶14 Next, in regard to Bastian’s contention that looking away from the road does not mean he was driving inattentively, Bastian’s argument overlooks that he did more than merely glance away from the road. Specifically, while his attention was diverted to his passenger seat, Bastian steered his vehicle toward Valk and then swerved to correct his direction of travel. It was the cumulative effect of his actions, not merely the fact that he looked away, that gave Valk probable cause to believe Bastian’s diverted attention interfered with the safe operation of his vehicle. See Wis. Stat. § 346.89(1).
¶15 Finally, Wis. Stat. § 346.89(1) does not provide that, before a violation can occur, the driver must get into an accident or deviate from his or her traffic lane. The statute only prohibits a driver from diverting his or her attention such that it interferes with the safe operation of his or her vehicle. Here, it was enough that Valk observed Bastian angle and drive his vehicle toward him while looking down at his passenger seat and swerve.
