Wisconsin Drunk Driver Rights

Traffic Stop Violated Rights of Drunken Driver, Court Rules
RYAN J. FOLEY Associated Press MADISON, Wisconsin

A police officer violated the constitutional rights of a repeated drunken driver when he pulled him over for drifting in his lane, a state appeals court ruled Thursday.

The ruling may spare 12 months in jail for Robert E. Post, 42, of Poynette, who had pleaded no contest to a fifth offense of operating a motor vehicle while intoxicated.

A Sauk Prairie police officer committed an unreasonable search and seizure in violation of the Fourth Amendment when stopping Post in February 2004, the District 4 Court of Appeals ruled.

Post's blood alcohol content was recorded at .212, nearly three times the legal limit, and he was charged with a fifth offense of operating a motor vehicle while intoxicated.

Post, 42, should never have been pulled over even though he had drifted "from the right part of his lane toward the left side of his lane and back several times," the court said. Post stayed in his lane and did not speed, drive erratically or commit any other traffic violations, the appeals court noted.

"Based on the officer's testimony, we conclude that the police did not have a reasonable suspicion that Post was violating the law that would justify a traffic stop," the court said. "Post's slight deviations within one lane of travel, with nothing more, does not, in our view, reach that quantum of evidence necessary to make the officer's hunch that Post might be intoxicated reasonable under the Fourth Amendment."

Post had pleaded no contest to the charge last year and was sentenced to one year in jail. However, the sentence was stayed pending the outcome of his appeal.

Post's lawyer, T. Christopher Kelly, said the decision means the police cannot use any evidence gathered during the traffic stop against his client. He said he believed prosecutors would likely be forced to drop the charges.

"All this decision says is you can't pull somebody over for normal driving. You've got to see bad driving," he said. "I think it was an easy call because we don't want the police pulling people over without having a good reason."

Kevin Calkins, a Sauk County prosecutor who handled the case, did not immediately return a phone message.

Source: http://www.duluthsuperior.com

Tags: DUI News |  Wisconsin DUI