court of appeals decision (1-judge, not for publication); for Thomas: John M. Carroll; case activity
Traffic Stop – Duration
¶8 Thomas argues Schellinger lacked reasonable suspicion to extend the traffic stop because the only fact supporting Schellinger’s belief that Thomas was operating while intoxicated was the odor of intoxicants. Thomas asserts the odor of intoxicants does not, by itself, constitute reasonable suspicion that a driver is operating while intoxicated. He contends Schellinger did not rely on the observed weaving to form a belief that Thomas was operating while intoxicated because Schellinger did not stop Thomas for weaving and, during cross-examination, when asked whether Thomas was able to get off his motorcycle, Schellinger responded, “The only thing that I observed was the odor of intoxicants.”
¶9 We reject Thomas’s assertion that the odor of intoxicants was the only fact supporting Schellinger’s belief that Thomas was operating while intoxicated. Although Schellinger testified, “The only thing that I observed was the odor of intoxicants,” the test for reasonable suspicion is an objective one.[3] See State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d 681 (1996); see also State v. Buchanan, 178 Wis. 2d 441, 447 n.2, 504 N.W.2d 400 (Ct. App. 1993) (“[I]t is the circumstances that govern, not the officer’s subjective belief.”). Here, in addition to the odor of intoxicants, Schellinger observed Thomas weaving within his lane and speeding thirty miles per hour over the posted limit. We conclude that, under the totality of the circumstances, the odor of intoxicants combined with the observed weaving, the 1:40 a.m. time of the stop, and the inordinately excessive speed gave rise to a reasonable suspicion that Thomas consumed enough alcohol to impair his ability to drive. See Post, 301 Wis. 2d 1, ¶¶10, 13. Schellinger properly extended the traffic stop to administer field sobriety tests.
