City of Tomah v. Steven Seward, 2014AP735, District 4, 9/25/14 (1-judge; ineligible for publication); case activity
Applying State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634, the court of appeals holds there was reasonable suspicion to stop Seward based on a police officer’s observations of his weaving within his lane of travel for about one mile at 11:34 p.m.
Post refused to hold that weaving within a single lane by itself gives rise to reasonable suspicion, but it also rejected a rule that weaving within a single lane must be “erratic, unsafe, or illegal to give rise to reasonable suspicion.” Id., ¶26. Instead, the court required that the State “show[] that there were ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ the intrusion of the stop.” Id., ¶27. The stop of Seward was lawful under Post:
¶12 …. [Officer] Helgerson testified that Seward’s vehicle veered continuously within its lane for approximately one mile. Upon review of the recorded video from Helgerson’s squad car, the circuit court found that the veering was “quite distinctive and noticeable.” … Post noted that other jurisdictions have looked at prolonged weaving as a factor supporting reasonable suspicion. Id., ¶25. In addition, in this case, the prolonged veering took place at around 11:34 p.m., and as the circuit court noted: “While that’s not the time that the bars close, it’s a time of night that someone driving at that time of night might raise at least some suspicion in the middle of the week that the person might be drinking.” See id., ¶36 (noting that incident took place at 9:30 p.m. which is not “‘bar time’” but “does lend some further credence to [the officer’s] suspicion that [the defendant] was driving while intoxicated”); …
¶13 Seward attempts to distinguish this case from Post and argues that Post “illustrates the outer limit of what can serve as reasonable suspicion in cases such as these.” Indeed, the Post court acknowledged that its decision was a close call. Post, 301 Wis. 2d 1, ¶27. However, the facts of this case do not give rise to a close call. In Post, the defendant’s vehicle veered in its lane for only two blocks before the officer conducted the traffic stop. Id., ¶36. Here, Seward’s vehicle veered continuously for approximately one mile before Officer Helgerson conducted the traffic stop. In Post, the incident occurred at approximately 9:30 p.m., which the court found was not bar time but still an important factor supporting the finding of reasonable suspicion. Id. Here the incident occurred later at night, around 11:34 p.m., which the circuit court found was not bar time but nonetheless an important factor that “might raise at least some suspicion.”
The court also rejects Seward’s argument that his breath test results shouldn’t have been automatically admitted and afforded the statutory presumption of intoxication because the Informing the Accused form was not admitted into evidence to show the officer gave the warnings required under § 343.305(4). (¶14). The implied consent law doesn’t require the actual text of the warnings to be admitted into evidence to show they were given; instead, the showing may be made by the officer’s testimony that he or she read the defendant the Informing the Accused form. (¶¶18-19). The officer provided such testimony at Seward’s trial, and Seward didn’t argue at trial or on appeal that the form she used didn’t comply with the statute. (¶20).
