State v. Michael Justin Schwersinske, Jr., 2022AP162-CR, District 2, 8/10/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Schwersinske concedes the lawfulness of the initial stop of the car he was driving for crossing the centerline of Highway 151. But he argues, unsuccessfully, that the officer didn’t have reasonable suspicion to extend the stop to have Schwersinske do field sobriety tests.

¶17     Here, the officer stopped Schwersinske at a time of night in which impaired driving is known to be more likely to occur [2:30 a.m.], observed him driving on the wrong side of the road, heard him admit that he had consumed two to three beers at a bar he was driving from, observed glassy eyes, and smelled the odor of intoxicants coming from him. These circumstances, viewed in their totality, provided grounds for the officer to reasonably suspect that Schwersinske was driving while impaired and materially distinguish the present case from the cases upon which Schwersinske principally relies. See [State v.] Gonzalez, No. 2013AP2585-CR, [unpublished slip op.] ¶¶14, 16-17 [(WI App May 8, 2014)] (holding that officer lacked reasonable suspicion to extend traffic stop where only factor suggesting driver was impaired was odor of intoxicants, defendant “did not admit to consuming any alcoholic beverages,” stop took place before midnight, and officer observed “no physical indicators of intoxication” or evidence of impairment from defendant’s driving before stop); County of Sauk v. Leon, No. 2010AP1593, unpublished slip op. ¶¶18, 21, 25-26 (WI App Nov. 24, 2010) (holding that officer lacked reasonable suspicion to detain defendant to perform field sobriety tests where officer “was not aware of any driving behavior … indicative of impaired driving,” defendant consistently acknowledged having consumed one beer on evening of stop, stop occurred before midnight, and defendant did not display physical signs of impairment).

In addition to pointing to the absence of certain indicia of impairment (¶12), Schwersinske argued that the reasonable suspicion assessment can’t include the driving leading to the stop or the officer’s observations after he had Schwersinske get out of the car to do FSTs. That assessment, he suggests, must be limited to what the officer learned after the stop while Schwersinske was sitting in the car talking to the officer, and that limited information wasn’t enough. (¶13). To which the court says: “These arguments misapprehend the nature of our inquiry.” (¶14). Reasonable suspicion is based on the totality of the circumstances, so the conduct leading to the stop counts; and having the driver get out of the car doesn’t unreasonably delay the stop because an officer may always do that. (¶¶8, 14-16).