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COURT OF APPEALS
DECISION
DATED AND FILED
March 23, 2011
A.
John Voelker
Acting Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal Nos.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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County of Sheboygan,
Plaintiff-Respondent,
v.
John A. Taylor,
Defendant-Appellant.
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APPEAL
from a judgment of the circuit court for Sheboygan County, Angela W. Sutkiewicz, Judge. Affirmed.
¶1 BROWN, C.J. John A. Taylor stands convicted of
operating a vehicle while intoxicated, operating with a prohibited blood
alcohol concentration and improper lane deviation. He appeals on the basis of State
v. Post, 2007 WI 60, ¶2, 301
Wis. 2d 1, 733 N.W.2d 634, holding that repeated weaving by a
driver within a single lane does not alone give rise to the reasonable
suspicion necessary for a traffic stop. He claims that his case is just the scenario
identified by the Post court. We hold that
the facts here are not like those envisioned in Post and affirm.
¶2 The pertinent facts need be only briefly related. On November 21, 2009, at about 1:00 a.m., a Sheboygan county deputy
sheriff observed that the red taillights of the automobile ahead of him
appeared to show the vehicle driving in and out of the traffic lane—crossing
both lanes of traffic. The deputy
accelerated so as to get behind the vehicle.
The deputy then observed the vehicle to “self correct” for a period of
time and then begin to do the “impaired driving” again. The driver “started
weaving within his own traffic lane and then towards the fog line. He would weave where the wheels are
going—would go up to the fog line and then just
break and correct himself back into his own lane.” (Emphasis added). When the deputy saw this happen again, he
decided to activate his lights to make the stop because the deputy “didn’t
think he was going to self-correct” and was going to go into the ditch. Even for the short time the deputy was behind
the vehicle, he saw that it “did cross the white fog line.” There was a videotape of the incident and the
trial court, after reviewing the tape, found that the vehicle “appeared to
travel at or near the fog line for a considerable distance. He was going toward the fog line. As noted by defense counsel not erratically,
but was getting close to the fog line.”
The trial court concluded that the deputy had reasonable suspicion to
stop the motor vehicle. The driver was
identified as Taylor. Taylor
appeals the conclusion of the trial court.
¶3 In Post, the police officer observed
Post travelling “in a smooth ‘S-type’ pattern” … a “smooth motion toward the
right part of the parking lane and back toward the center lane.” Id., ¶5.
The car came within twelve inches of the center line and within six to
eight feet of the curb. Id. The movement “was neither erratic nor
jerky and the car did not come close to hitting any other vehicles or … hitting
the curb at the edge of the parking lane.”
Id. Based on these facts, the supreme
court held that the facts gave rise to reasonable suspicion that Post was
driving while intoxicated. Id., ¶38. While the court rejected the State’s
contention that repeated weaving within one’s own lane should be grounds to
stop the vehicle as a bright-line rule, it nonetheless concluded that “[m]oving
between the roadway centerline and parking lane” was not a slight deviation, as
argued by Post. Id., 29.
Significantly, the court stated that there need not be evidence
of “erratic” or “illegal” driving. Id., ¶¶23-24.
¶4 Comparing the facts in Post with the facts here, this is
the stronger case. Taylor did not drive in a “smooth” pattern,
but drove at or near the center line three times, then braked and corrected
himself. He did not come within twelve inches
of the center line; he was at or near the center line. The deputy thought that this was evidence of
impaired driving. He was worried about
the driver’s safety the third time that Taylor
went toward the center line. In
addition, the timing here was significant—unlike in Post, it was bar closing
time when Taylor
was pulled over. See id., ¶36. All these
circumstances provided reasonable suspicion and justified the stop. Taylor’s
actions amounted to more than a “slight deviation”—the kind of driving that
would not make a person’s driving reasonably suspect. Rather, his driving behavior is what alerted the deputy to the suspicion that Taylor was driving while
intoxicated. Seeing as how this deputy
had forty-five operating while intoxicated arrests in the previous year alone,
we think this deputy would know suspicious driving behavior when he saw it.
By the Court.—Judgment affirmed.
This
opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.