COURT OF APPEALS DECISION DATED AND FILED November 25, 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 IV |
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State of Plaintiff-Respondent, v. Patricia J. Courchaine, Defendant-Appellant. |
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APPEAL
from a judgment of the circuit court for
¶1 LUNDSTEN, J.[1] Patricia Courchaine appeals a circuit court judgment convicting her of a third drunk driving offense. She challenges the circuit court’s determination that there was reasonable suspicion for the stop that led to her arrest. I affirm the judgment.
Background
¶2 The officer who stopped Courchaine testified to the following
facts. At approximately 11:00 p.m., a
vehicle caught the officer’s attention because it was not driving in a straight
line. When the officer first saw the
vehicle, it was near the intersection of
¶3 Just after the
¶4 After the curve, the vehicle deviated within its lane two more times, about five or six feet. At one point, it veered toward the center line as an oncoming vehicle approached. The officer observed no reasonable explanation for the path the vehicle was taking.
¶5 As the vehicle approached the
¶6 According to the officer, his squad camera records and
“dumps” footage continuously, but, when he “activates” the camera, it saves the
footage beginning sixty seconds before activation. A copy of the video footage was received in
evidence, and the circuit court viewed the available footage leading up to the
stop. The officer testified that the video
started recording near the
¶7 The circuit court found that the officer had reasonable
suspicion to stop Courchaine. Courchaine
subsequently raised the question of whether the officer’s testimony and video
were inconsistent. After reviewing the
officer’s testimony and the video, the court found that the officer began observing
the vehicle at
Discussion
¶8 Reasonable suspicion is a common sense test based on the
totality of the circumstances.
¶9 It is undisputed that the video in this case does not show the initial, prominent veering that the officer testified he observed. Courchaine asserts that the officer’s testimony and the video are inconsistent, and that all of her driving would have appeared on the video. Her argument seems to be that, as a consequence of this inconsistency, the circuit court could not consider the officer’s testimony about prominent veering because that testimony was not credible.
¶10 Courchaine’s argument is, in effect, a challenge to certain circuit court fact findings. I reject this challenge because the pertinent findings are not clearly erroneous.
¶11 As already indicated, the circuit court found that the officer
began observing Courchaine’s vehicle at
¶12 The inconsistency to which Courchaine refers arises from the
officer’s testimony that he activated his camera at
¶13 Courchaine may also be arguing that, even when the prominent veering is considered, the totality of the circumstances is insufficient to constitute reasonable suspicion of impaired driving. If so, I disagree. Courchaine’s prominent veering, while significant on its own, was also followed by additional veering, including one instance in which she veered toward an oncoming vehicle. In addition, Courchaine came to a complete stop at a flashing yellow light when nothing in the record suggests a legitimate reason for doing so. The officer testified that these were all driving behaviors that he associated with alcohol impairment. Finally, the time was approximately 11:00 p.m. When all of these facts are taken together, they are sufficient to provide reasonable suspicion of impaired driving. Cf. Post, 301 Wis. 2d 1, ¶¶2, 27-37 (“weaving within a single traffic lane does not alone” constitute reasonable suspicion for a traffic stop, but stop was justified when a vehicle was initially “canted” into a parking lane and repeatedly weaved approximately ten feet within its lane over the course of two blocks at 9:30 p.m.).
¶14 Courchaine argues that there was an innocent explanation for at
least some of her driving behavior. In
particular, she points to her testimony that she veered at least once because
she was trying to avoid a commotion on the side of the road. Courchaine’s explanation for her driving
behavior, however, was not apparent to the officer who stopped her, and the police
“are not required to rule out the possibility of innocent behavior before
initiating a brief stop.” State
v. Waldner, 206
¶15 Courchaine also argues that none of her individual driving
behaviors violated any law. That is not
the test. “[D]riving need not be illegal
in order to give rise to reasonable suspicion.” Post, 301
By the Court.—Judgment affirmed.
This opinion will not be published. 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.
[2] The officer uses the concepts of veering and deviating interchangeably, and Courchaine does not distinguish between the two concepts. Accordingly, I have assumed for purposes of this decision that the concepts refer to similar driving behaviors.