The Wisconsin Supreme Court Declares a Curfew

The stuff of higher courts is not for the faint of heart. We want to think that the judges of the various level of courts are capable of reasoning. And, that there is something that is inherently fair and intelligent about the decision making process.

In State v. Post*, the Wisconsin Supreme Court demonstrates again, the mysterious workings of our great legal minds. Here, what they gave with one hand, they took away with the other.

The Court decided that drivers weaving within their lane on a roadway was not probable cause for a police traffic stop. The Court then went on to say that weaving within the lane at 9:30 in the evening was probable cause.

Now the weaving, as it was called, was not a jerky type such as attempting to keep a vehicle under control. The vehicle was never closer than eight feet to the curb, nor closer than one foot to the center line. The arresting officer stated that the driver weaved several times in a two block period. The total lateral distance of the weave was estimated at ten feet.

The policeman, Sergeant Josh Sherman, observed Post’s vehicle and a second vehicle. Post made a proper and safe left hand turn; the other vehicle turned into the oncoming vehicle lane. Sherman stopped both drivers. Post was found to have a blood alcohol level of 0.212 percent.

Now this is one of those decisions that make this court the Keystone Kourt. If weaving gently within one’s lane is all right, then why put a curfew on it? Or how is the curfew decided? The majority in this decision felt that 9:30 at night was a good indication that drunkenness was involved without explaining any basis or reasoning. They did not explain when the curfew would expire. Is 5:30 in the morning covered, but 6:30 is not?

The State wanted weaving to be reasonable cause for arrest without any limit. So one weave of two feet in ten blocks could be considered probable cause. But, relying on eyeball measurements and guessing at what is a weave and what is not will lead to arbitrary and capricious stops by some members of law enforcement. This can also lead to retroactive claims to justify a traffic stop. Defining a weave that exceeds the driving lane is a very definite measurement that most persons are capable of making. This is an unambiguous standard

Now the Court could have done better to at least set a curfew period when any weaving would be probable cause. But, it didn’t. Obviously, the majority wanted to convict Post for his very high blood alcohol content. The only way to do so was to nullify a reasonable decision with a bizarre one.

I wonder if the charge had been different than drunk driving if these Solons would have had the same wisdom.

* Case no. 2005AP2778‑CR