City of Eau Claire v. David Eugene Phelps, 2016AP248, District 3, 12/28/16 (one-judge decision; ineligible for publication); case activity (including briefs)
Contrary to the circuit court’s conclusion, a police officer’s observations about Phelps’s driving provided more than a “hunch” and justified the stop of his car.
¶9 First, Phelps twice traveled at unusually slow speeds in thirty and thirty-five miles-per-hour speed limit zones with there being no other traffic ahead of him. See State v. Waldner, 206 Wis. 2d 51, 60-61, 556 N.W.2d 681 (1996) (“lawful but suspicious conduct” may accumulate to create a reasonable inference of unlawfulness, including driving at an unusually slow speed). Second, Phelps activated his turn signal on two separate occasions for relatively long periods of time. See id. Third, Phelps maintained his unusually slow speed in a manner that impeded [Officer] McClain’s travel. Cf. Wis. Stat. § 346.59(1) (“No person shall drive a motor vehicle at a speed so slow as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or is necessary to comply with the law.”). Fourth, Phelps executed a wide right turn into the left-hand lane of Lake Street, thereby appearing to have violated Wis. Stat. § 346.31(2)…. Finally, the stop occurred at 2:30 a.m. on a Sunday, and it is commonly known that the incidence of people driving drunk tends to be at its highest at “bar time.” See [State v.] Post, [2007 WI 60,] 301 Wis. 2d 1, ¶36[, 733 N.W.2d 634]; see also Wis. Stat. § 125.32(3). These facts, taken together and all of which happened in a relatively short span of time, allow a trained police officer to reasonably conclude that Phelps’s driving behavior was unusual and the result of impairment by intoxicants, thus justifying an investigative stop.
It doesn’t matter that, according to the circuit court, local police supposedly have a “policy” not to ticket for turning too wide (¶5):
¶10 The nature of the wide right turn violation was significant. Motorists performing a right turn are required to begin in the right-hand lane and execute a turn into the nearest right-hand lane; Phelps failed to follow this rather commonly known rule. See Wis. Stat. § 346.31(2). Phelps might not have been ticketed for disregarding this rule of the road, but this indifference does not remove the turn from consideration within the totality of the circumstances as suspicious behavior….See Post, 301 Wis. 2d 1, ¶22.
