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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.