COURT OF APPEALS DECISION DATED AND FILED August 19, 2009 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. |
|
|||
STATE OF WISCONSIN |
IN COURT OF APPEALS |
|||
|
DISTRICT II |
|||
|
|
|||
|
|
|||
State of
Plaintiff-Respondent, v. Andrew S. Lux,
Defendant-Appellant. |
||||
|
|
|||
APPEAL
from a judgment of the circuit court for
¶1 BROWN, C.J.[1] Andrew S. Lux stands convicted of operating a vehicle while intoxicated, fourth offense. He contends that the reason for the stop, the officer’s conclusion that he was driving at an unreasonable and imprudent speed, was unjustified since there was no objective evidence as to his speed, and the officer simply reacted based on what he considered to be excessive engine noise when accelerating from a stop. But evidence of speed is not the sine qua non of a violation. Rather, the question is whether the conduct observed and relied upon by the officer permitted him to reasonably suspect that Lux was driving in a reckless manner such that his speed was imprudent under the circumstances. The totality of the evidence shows that the officer had just this reasonable suspicion and the stop was proper. This court affirms.
¶2 At about 2:42 a.m. on Sunday, June 29, 2008, a
¶3 The grounds for the officer’s stop was a suspected violation of Wis. Stat. § 346.57(2), which provides in pertinent part:
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. The speed of the vehicle shall be so controlled as may be necessary to avoid colliding with any object, person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and using due care.
¶4 Lux argues that he demonstrated due care and control in
accord with the statute because he stopped at the stop signs, did not exceed
the speed limit and did not collide with any object, person or vehicle. We disagree.
The language of the statute reveals that compliance requires more than
the absence of a collision and adherence to traffic signs. A collision is not a prerequisite nor is
speeding. The mere fortuity that the
defendant did not have a collision and the fact that speed limit was not
exceeded do not, by themselves, demonstrate due care and reasonableness under
the statute. Rather, it is necessary to
prove that the speed was greater than that which is “reasonable and prudent
under the conditions and having regard for the actual and potential hazards
then existing.” Wis. Stat. § 346.57(2); see also 52
¶5 In determining whether such facts are present in this case,
we ask: under all the facts and
circumstances present, what would a reasonable police officer reasonably
suspect in light of his or her training and experience? State v. Jackson, 147
By the Court.—Judgment affirmed.
This opinion will not be published in the official reports. See Wis. Stat Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. §752.31(2)(f) (2007-08). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.