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

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