2010 WI APP 51

State of Wisconsin,

�� Plaintiff-Respondent,

�� v.

Robert A. Tomaszewski,

�� Defendant-Appellant.

Opinion Filed:	March 23, 2010
Submitted on Briefs:�	August 31, 2009
Oral Argument:�

JUDGES:	Hoover, P.J., Peterson and Brunner, JJ.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the defendant-appellant, the cause was submitted on the briefs of Devon M. Lee, assistant state public defender, Madison.�

Respondent
ATTORNEYS:	On behalf of the plaintiff-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Sally L. Wellman, assistant attorney general.�

COURT OF APPEALS

DECISION

DATED AND FILED

March 23, 2010

David R. Schanker

Clerk of Court of Appeals

NOTICE

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.�

Appeal No.�	2009AP385-CR	Cir. Ct. No.� 2008CF127
STATE OF WISCONSIN��			IN COURT OF APPEALS



State of Wisconsin, �� Plaintiff-Respondent, �� v. Robert A. Tomaszewski, �� Defendant-Appellant.

�� APPEAL from a judgment of the circuit court for St. Croix County:� EDWARD F. VLACK III, Judge.� Affirmed.�

�� Before Hoover, P.J., Peterson and Brunner, JJ.

�1�� BRUNNER, J. Robert Tomaszewski appeals a judgment of conviction, entered upon his no contest plea, on one count of operating while intoxicated, fifth or greater offense, in violation of Wis. Stat. � 346.63(1)(a).[1]� He contends evidence of his intoxication must be suppressed because police lacked reasonable suspicion to conduct a traffic stop.� We conclude police reasonably suspected Tomaszewski of following within 500 feet of another vehicle while using his high beams in violation of Wis. Stat. � 347.12(1)(b).� Consequently, we affirm.

BACKGROUND

�2�� On April 10, 2008, the State filed a criminal complaint alleging that on August 4, 1999, Tomaszewski operated a motor vehicle while intoxicated and with a prohibited alcohol concentration.[2]� Tomaszewski filed a motion to suppress, arguing police lacked reasonable suspicion for the traffic stop that produced evidence of the crime.�

�3�� Kirk Danielson, an inspector for the Wisconsin State Patrol, was the sole witness at the suppression hearing.� Danielson testified that on August 4, 1999, he was observing traffic on Interstate 94 in St. Croix County.� Around 1:15 a.m., he noticed a white four-door vehicle, driven by Tomaszewski, following closely behind a westbound semi truck.� Tomaszewski�s high beam headlights were on, and Danielson estimated 400 feet separated Tomaszewski�s vehicle and the truck.� Tomaszewski passed the semi, dimming his lights only as he approached the semi�s passenger compartment.�

�4�� Danielson conducted a traffic stop.� Tomaszewski�s eyes were glassy and bloodshot and his speech was slurred.� Danielson also smelled alcohol.� Tomaszewski failed field sobriety tests and was arrested for operating while intoxicated.�

DISCUSSION

�� 5�� Tomaszewski argues the traffic stop violated his constitutional rights because it was not based on reasonable suspicion.� �The question of whether a traffic stop is reasonable is a question of constitutional fact.�� State v. Post, 2007 WI 60, �8, 301 Wis. 2d 1, 733 N.W.2d 634.� �A question of constitutional fact is a mixed question of law and fact to which we apply a two-step standard of review.� We review the circuit court�s findings of historical fact under the clearly erroneous standard, and we review independently the application of those facts to constitutional principles.�� Id. (citations omitted).

�6�� Police may conduct an investigative stop if the officer is ��able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant� the intrusion of the stop.�� Id., �10 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).� The intrusion is warranted if the officer reasonably suspects the person stopped is committing, is about to commit or has committed a crime.[3]� Wis. Stat. � 968.24; Post, 301 Wis. 2d 1, �13.� �The reasonableness of a stop is determined based on the totality of the facts and circumstances.�� Post, 301 Wis. 2d 1, �13.

�7�� The circuit court concluded the traffic stop was justified because Danielson reasonably suspected Tomaszewski of violating Wis. Stat. � 347.12(1)(b), which provides: �Whenever the operator of a vehicle equipped with multiple-beam headlamps approaches or follows another vehicle within 500 feet to the rear, the operator shall dim, depress, or tilt the vehicle�s headlights so that the glaring rays are not reflected into the eyes of the operator of the other vehicle.�[4]� The circuit court found Tomaszewski followed within 400 feet of the semi.� In addition, it found Tomaszewski did not dim his headlights until he was passing the truck.

�8�� Tomaszewski contends the circuit court�s conclusion was in error because there was no evidence that the glaring rays of his vehicle�s high beams reflected into the eyes of the semi truck driver.� Moreover, he asserts no such evidence could be produced because a semi truck lacks a rear windshield through which the lights could shine.� In the State�s view, no such evidence was necessary, as the language �so that the glaring rays are not reflected into the eyes of the operator of the other vehicle� merely describes the purpose of requiring dimmed headlights and does not create an element of the offense.

�9�� Resolution of this dispute requires that we interpret Wis. Stat. � 347.12(1)(b).� Interpretation of statutory language is a matter of law we review de novo.� Christensen v. Sullivan, 2009 WI 87, �42, 320 Wis. 2d 76, 768 N.W.2d 798.� If the language of a statute is unambiguous, we will ordinarily stop the inquiry and apply the statute in accordance with its plain meaning.� State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, �45, 271 Wis. 2d 633, 681 N.W.2d 110.� Statutory language will be given its common, ordinary, and accepted meaning.� Id.� �[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.�� Id., �46.�

�10�� We conclude Wis. Stat. � 347.12(1)(b) does not require proof that the headlights reflected into the eyes of another driver.� The statute directs drivers operating within 500 feet to dim their headlights, and concludes by describing the purpose of this requirement: to prevent the glaring rays from reflecting into another driver�s eyes.� Tomaszewski�s interpretation would require an ordinary driver using high beams to know whether his or her headlights will impair another driver�s vision.� This interpretation is absurd; drivers are in no position to determine whether their vehicle�s high beams glare into the eyes of other drivers.� To avoid this problem, the statute assumes the use of high beams within 500 feet will cause impairment, and prohibits their use.

�11�� Under this interpretation, the circuit court properly found that Danielson possessed reasonable suspicion Tomaszewski was in violation of Wis. Stat. � 347.12(1)(b).� It found Tomaszewski used his vehicle�s high beams while operating within 500 feet of the semi truck.� These findings are not clearly erroneous and the circuit court properly denied Tomaszewski�s suppression motion.[5]

�� By the Court.�Judgment affirmed.

��

[1] All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

[2] Tomaszewski concedes the delay in prosecuting this case was entirely his doing.� He acknowledges he was originally charged in 1999, but absconded after failing to appear at a scheduled status conference.� The State filed a new criminal complaint after Tomaszewski turned himself in on several outstanding warrants in 2007.

[3] Tomaszewski argues this is not a case in which reasonable suspicion that he was violating a traffic law would justify the stop.� In Tomaszewski�s view, a temporary detention may be justified by reasonable suspicion only where an officer cannot determine, without further investigation, whether a traffic violation has occurred.� This is not the law.� See, e.g., Wis. Stat. � 968.24; State v. Post, 2007 WI 60, �13, 301 Wis. 2d 1, 733 N.W.2d 634; State v. Griffin, 183 Wis. 2d 327, 330-31, 515 N.W.2d 535 (Ct. App. 1994) (temporary detention justified whenever police reasonably suspect the individual stopped has committed a crime).

[4] We note Wis. Stat. � 347.12(1)(b) reads much as it did when created in 1957.� Compare Wis. Stat. � 347.12(1)(b) with 1957 Wis. Laws, ch. 260, � 1 (creating Wis. Stat. ch. 347).

[5] Even if the State was required to prove the light from Tomaszewski�s headlights reflected into the eyes of the semi truck driver, we would find the State satisfied its burden.� Although we do not decide the case on these grounds, the circuit court found Tomaszewski did not dim his vehicle�s lights until passing the semi.� This fact is sufficient to create reasonable suspicion, as it was reasonably likely Tomaszewski�s headlights reflected in the semi driver�s eyes through side mirrors.

Case No.:	2009AP385-CR
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