COURT OF APPEALS DECISION DATED AND FILED October 20, 2009 David
R. Schanker 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 No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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Plaintiff-Respondent, v. Nicholas J. DeMoe,
Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1
BACKGROUND
¶2 Police officer William Shafer observed DeMoe’s vehicle
traveling in front of him on Highway 35 in the
¶3 DeMoe moved to dismiss the case, arguing Shafer did not have reasonable suspicion to stop him. Following an evidentiary hearing, the circuit court denied Shafer’s motion. DeMoe was found guilty at a bench trial and now appeals.
DISCUSSION
¶4 An officer initiating an investigative stop of a vehicle must
have reasonable suspicion that the driver committed an offense. State v. Rutzinski, 2001 WI 22, ¶14,
241
¶5 DeMoe does not dispute the circuit court’s findings. Rather, he argues the totality of the circumstances does not permit a finding of reasonable suspicion. Specifically, DeMoe argues the operation just outside of the fog line for approximately one-half block and then correcting onto the fog line, at 2:43 in the morning, does not lead to a reasonable suspicion of impaired driving because Shafer acknowledged that DeMoe was not weaving.
¶6 We disagree. Observation
of a vehicle traveling partially outside, and then on, the fog line for a
significant distance shortly after bar time reasonably leads to an inference
that the person is operating while intoxicated, and permits the minimal intrusion
of a temporary investigative stop.[2] DeMoe further argues that operation on or
over the fog line is not prohibited by statute.
Whether this is true does not affect the reasonable suspicion
determination. Even “when a police
officer observes lawful ... conduct, if a reasonable inference of unlawful
conduct can be objectively discerned, notwithstanding the existence of other
innocent inferences that could be drawn, police officers have the right to
temporarily detain the individual for the purpose of inquiry.” State v. Waldner, 206
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.