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Badgerland
12-14-2006, 04:17 AM
I remember reading in the paper about a Wisconsin court case (Appeals or Supreme Court) where an OWI conviction (I think) was tossed because the only PC the officer had for the stop was that the driver crossed the fog line. The court stated that the driver did not commit an unsafe lane deviation because anything outside of the fog line is not a lane, so to speak. Anyone know what case this is?

NBW791
12-14-2006, 04:24 AM
Never heard of it, but it could just be a matter of Wisconsin law. I know our lane law says you have to drive your vehicle within your own lane as nearly as practicable. So it's best to get several fail to maintain a lane violations before you stop them. Just one could still be argued that it's practicable (perhaps it was windy or he just accidentally drifted over the line).


Driving on roadways laned for traffic. Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.

(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

-Nick-

WIpo-po
12-14-2006, 03:45 PM
I dont know what exactly the case was about but I remember hearing something from the courts on tossing out an OWI case. However, from what I remember from the academy and from my FTOs, crossing the fog line is a indicator or clue for OWIs but it is not something you can cite a driver for. Thats just the way the statue works in WI. So if you see the vehicle pass over the fog line and you suspect OWI just follow the vehicle for a little bit longer and find a legally defensible violation. Hope this helps a little.

jeeper
12-14-2006, 04:28 PM
Here's my thoughts:

I can completely understand that "unsafe lane deviation" doesn't jive based on the theory that there isn't really anything unsafe about simply crossing the fogline. But, how about this one, "failure to maintain travel in designated lane". To me, that sounds pretty simple and clear cut.

Comments? Opinions?

lightfighter21
12-15-2006, 03:14 AM
Nope lane deviation does not work or operate in designated lane. The fog line does not indicate the lane of traffic. I lost a absolute sobriety case because the reason for the stop was lane deviation. The driver crossed the fog line. I know an deputy that lost an OWI and his reason was crossing the fog line.

I dont know the case but a Trooper lost an OWI case for operate in designated lane. It my understanding the reason for the stop was crossing the fog line. This case went to WI Supreme court. This was a recent ruling I believe earlier this year or end of last.

WICop
12-18-2006, 09:13 PM
WI courts at it's finest. State v. Hayden (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2\2006\2005ap001253&invol=1)

A state trooper first encountered Hayden's oncoming vehicle at 1:30 a.m. He then noticed that the car's passenger-side tires were over the white fog line. He decided to turn around and follow the vehicle. As he did so he observed that the passenger side tires on Hayden’s vehicle were now on, but not over, the fog line. The trooper stopped Hayden’s vehicle. Again, one thing led to another and Hayden was arrested for first offense OWI. The Court of Appeals found that driving on, or over, the fog line was not a violation of Section 346.13(3) which requires one to “drive in the lane designated.” Further, the Court held that the totality of the circumstances would not lead an officer to reasonably suspect that Hayden was driving while impaired, “or even that such driving behavior was unusual.”

WICop
12-18-2006, 09:28 PM
Our courts trying to keep WI police officers safe on the street! Here is the case law. (http://www.wisbar.org/AM/CustomSource/ASPCode/caseshow.asp?Hig=on&SearchTerm=johnson%2A&urlpath=http://www.wisbar.org/res/capp/2005/2005ap000573.htm)

FURTIVE OR SUSPICIOUS GESTURES DO NOT AUTOMATICALLY PROVIDE BASIS FOR SEARCH OF AUTO.

State v. Johnson, 2005 WI App 15, 288 Wis. 2d 718 (2005); a Petition for Review has been granted by the Supreme Court

Johnson was pulled over by Racine officers when they noted his car had an emissions suspension and he failed to signal a turn. The officers saw him lean forward in what they described as a strong furtive movement, bending down as if he was reaching underneath the front seat. After removing Johnson from the car, the officers told him they were going to search the car and he did not object. The search revealed marijuana and a subsequent search of Johnson, during which he fell down 2 times due to a “bad leg,” led to a cocaine charge. At the suppression hearing, the circuit court held that Johnson had consented to the search.

The court of appeals reversed. Regarding the consent issue, the state conceded that Johnson did not consent to the search. The court then applied the Terry test to determine whether the furtive movements and Johnson’s falling down during the search provided a reasonable basis to believe that a protective search for weapons was justified. While acknowledging that furtive movements are an important factor to consider, the court held that “‘furtive’ or suspicious movements do not automatically give rise to an objectively reasonable suspicion that the occupant of the vehicle is armed and dangerous.” Looking at the totality of the circumstances in this case – including the facts that the stop was for traffic violations and not a crime, that nothing was known about Johnson’s prior police history, that the area of the stop was not claimed to be a high crime area, that there was adequate illumination of the vehicle, and that Johnson was generally cooperative – the court held that the Terry test was not met.

SRT936
12-19-2006, 01:03 AM
As mentioned earlier, the best solution to this is follow a little longer and develop additional "cumulative" factors. One crossing of the fog line may not be enough, but several start to stack up.

On a side note, any bets the defendant will sue the trooper and the WSP for "violating" his rights by stopping him? :rolleyes:

WICop
12-19-2006, 11:24 PM
On a side note, any bets the defendant will sue the trooper and the WSP for "violating" his rights by stopping him? :rolleyes:

Well SRT 936 don't YOU think that Trooper and the WSP should be sued? He did violate the innocent drivers constitutional rights! That poor driver was simply driving down the road and that mean Trooper harassed him. That drunk, er I mean driver, was simply driving down the road. That poor drunk driver deserves at least a half million for his trouble.

WICop