Wednesday, February 09, 2011

DUI Appeal of the Day (DAD) - Stopping Car of Unlicensed Owner

In Wisconsin v. Seehafer, Slip Copy, 2011 WL 383743 (Wis.App.) the defendant appealed his conviction for DWI based upon a claim of an illegal stop. The facts are as follows:

Officer Mark Hull saw a car he believed to be owned by a person who did not have a valid driver's license. Hull caught up to the car and ran a computer check on the license plate. Hull learned the car was not registered to the person he initially believed, but rather it was registered to a woman who did not hold a valid driver's license. To investigate whether the car was being operated by an unlicensed person, Hull activated his emergency lights and the car pulled into a vacant lot. Hull could see two people in the car as he approached the car from the rear. When Hull got to the driver's window, he saw that the driver was a male. Hull asked the driver for identification, and the driver produced an expired instructional permit, identifying himself as Michael Seehafer. Hull then ran a computer check on Seehafer, and learned that Seehafer's license was revoked due to an operating while intoxicated conviction. That check showed that Seehafer had several prior OWI convictions.

On appeal, the defendant conceded that the initial stop was proper, given that the car was registered to an unlicensed driver. However, the defendant claimed that once the officer saw that the car was being driven by a male (the unlicensed owner was female) that the basis for the stop was dissipated.

The appeals court disagreed. Relying on a previous decision, they held that:

"This court [has] held that after the officer ascertained the driver was not the person she was looking for, “it was reasonable ... to make a report of the incident, ... and for that purpose it was reasonable for her to ask for Williams's name and identification.”

Editor's opinion: the holding is contrary to recent case out of Illinois, that held that an initial stop was improper
where it was broad daylight, and the officer made no attempt to confirm that the driver resembled the unlicensed owner of the vehicle. As such, it may have been a tactical error to concede the propriety of the stop here, in order to at least advance an argument that prior decisions were also incorrect. Additionally, the court's claim that the need "to make a report of the incident" can somehow counter-act the "right to be free from unreasonable searches or seizures" is (IMHO) both farcical and disingenuous.

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