OWI Appeal - Wisconsin OWI Stop Based On Weaving OK

In State of Wisconsin v. Pence, No. 2010AP1944-CR.March 24, 2011, the defendant was stopped after weaving within his lane 5 times within 1 1/2 to 2 miles of driving. During the motion to suppress, Deputy Miller stated that in his experience, when he makes stops after midnight, there is a high probability that the driver is intoxicated. He also testified that it is not normal for a driver to weave within his or her lane and, based on his experience, someone weaving in his or her lane is possibly intoxicated or unable to safely operate a vehicle. After observing the vehicle weave at least five times, Deputy Miller conducted an investigative stop of the vehicle. Deputy Miller also testified that he has worked in law enforcement for five years. He is trained in OWI enforcement and field sobriety testing, and has made close to 100 stops for OWI.

On appeal, the court held that, while simple weaving within the lane (without more elaboration) would not justify a stop, Deputy Miller's explanation about the time of day, and his experience with drunk drivers, was enough to transform the facts into reasonable suspicion. Therefore, the denial of the motion by the trial court was affirmed.

AUTHORS COMMENTS: Essentially, the opinion allows the police to 'create' a basis to stop of vehicle for conduct which, if performed during daylight, would be completely legal. According to this case, Wisconsin has just created its own 'sunset' provision to the Fourth Amendment of the Constitution.


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