Driving with extreme care can be evidence of a crime, according to a ruling Thursday by the Wisconsin Court of Appeals. Motorist Kevin J. Burch was driving his pickup truck through West Salem at 12:44am when a police officer took notice. The officer watched as the truck slowed to a near stop at an intersection, even though there was no stop sign. At the next block, Burch again came to a full stop before proceeding. There was no other traffic nearby. The officer had taken a “drunk driving course” and found the driving suspicious — especially since he said it was “bar time.” The officer conducted a traffic stop.
The appellate court took up the question whether, up to this point, the officer’s actions were consistent with the Fourth Amendment requirement that police officers only stop someone they reasonably suspect has committed or is about to commit a crime. Burch argued the stop was unjustified because his driving was not unsafe, illegal or suspicious, and the bars close at 2am in the village, not 12:44. The appellate judge dismissed the timing argument.
“The phrase used by the [lower] court was clearly intended to capture the idea that a greater percentage of the drivers on the road are impaired during the post-midnight hours than at other times of day,” Judge Brian W. Blanchard wrote. “The preponderance of excess drinking occurs at night, and not all tavern patrons wait to hear the final bell before departing taverns.”
Burch then cited a Court of Appeals case from 2000, Wisconsin v. Fields, in which the appellate panel found that a five to ten second stop at an intersection that had no stop sign did not provide reasonable suspicion to pull over the driver. Judge Blanchard found the present case different because the second stop provided reasonable suspicion.
“If Burch had merely slowed to a near stop inexplicably one time, or had merely stopped inexplicably one time, such conduct, even at 12:44 am, might not have been sufficient,” Blanchard wrote. “However, when considered together, in light of the officer’s training and experience and the late hour, Burch’s two separate unexplained interruptions of normal driving conduct created the circumstances for reasonable suspicion of impaired driving.”
As a result, the court denied Burch’s motion to suppress evidence and affirmed his conviction for driving under the influence of alcohol. A copy of the unpublished decision is available in a 60k PDF file at the source link below.
Source: 
Wisconsin v. Burch (Court of Appeals, State of Wisconsin, 7/21/2011)
[Courtesy: Thenewspaper.com]
And the problem is…. What?
The driver was being overly cautious, which is classic DUI behaviour. The officer saw it and puller him over. And, lo and behold, he was drunk?
The headline is incredibly disingenuous. “Cautious driving” isn’t a crime, being drunk behind the wheel is, and driving slowly and stopping unnecessarily is a big red flag to any law officer that they ought to pull you over and check because, you know, it’s their job.
+1 We have a winner! The DUI driver was exhibiting classic DUI behavior and was stopped, where it was confirmed he was in fact DUI.
Well-said. Even if he wasn’t drunk, the cop still should have stopped him to make sure he was OK.
Absolutely +1. I’ve seen the same thing myself, although later than 12:44 p.m., when I used to work the night police beat for the Houston Chronicle.
In any country (as most do) that allows unjustified ride patrol/sobriety checkpoints, this is a far lesser greviance.
“The Newspaper” Writes Deliberately Misleading Headline
A police officer noticed a suspicious pattern of driving behavior consistent with a drunk driver and pulled over the driver to take a routine breathalyzer test. As it turned out, the driver pulled over was, in fact, drunk! The driver’s repeated attempts to weasel out of his conviction on a technicality were unsuccessful.
As a result, internet publication “The Newspaper” decided that a good way to get article views would be to pretend that the pattern of driving behavior (driver stopping at intersections where he was not supposed to stop, because that certainly never causes rear-end collisions at quarter to one in the morning) was the illegal action rather than the driver’s BAC.
I might drive very cautious, especially if a cop car is nearby. Maybe i stop when I don’t have to… just in case there is some random drunk driver. Maybe I get pulled over because of that. so what? If I don’t drive drunk I’m happy to get pulled over 10 times a day if it makes the streets safer.
This is the same arguing NBA players have that refuse drug tests. there is only one reason why you would complain about being pulled over – because you did something bad.
the headline is majorly misleading. the story also doesn’t tell that drunk driving is a huge problem in WI. Even assembly members get caught with their 5th DUI. I recently heard of a case of a guy who had his 10th DUI. for some reason those scumbags are allowed to keep their license for a few DUI and endangering the public. If they got pulled over 10 times and were drunk every one of them, they are drunk every time they drive.
Cry me a river about unlawful pulling over.. go tell that the parents who lost their child or someone else to a drunk driver who didn’t get pulled over because he wasn’t suspicious enough.
While I agree that the headline and article are purposely misleading – I think HerrKaLeun misses the point:
“there is only one reason why you would complain about being pulled over – because you did something bad.”
That’s the same argument used for traffic cameras, police surveilence, hell, The Patriot Act: that you have nothing to fear if you’ve done nothing wrong.
There are also a lot of minorities who would argue that they get hassled a heluva lot more because they are minorities. In their cases, they get pulled over and it’s not always because they’ve done something wrong.
“there is only one reason why you would complain about being pulled over”
Seriously? You’re ok with just being randomly stopped and hassled for any old reason?
Sad.
Seriously? You’re ok with just being randomly stopped and hassled for any old reason?
No, but you should be ok with being stopped because you’re exhibiting classic DUI behaviour while driving just after last call. Especially—and this is important—if you’re drunk. The Newspaper is conveniently very oblique on this point.
This is very different from, say, patting down caucasian toddlers at airports in the American Midwest. “Slippery slope” doesn’t quoie apply.
I’m OK with randomly being pulled over. In Germany (and probably most European countries) random sobriety checkpoints etc. are very common, especially at night time on weekends. Most countries even have zero promille (right 0.0) BAC levels and you lose your license for a year entirely (no occupational license). But no one (except for the few who are drunk driving) complains, but everyone enjoys fewer alcohol related deaths in traffic.
I choose being randomly pulled over, over being randomly hit by a drunk SUV driver.
If a minority gets pulled over, what is the big deal if the person is not drunk or has an unsafe car or any other violation? Nothing but a waste of time will happen. Just wait, in 15 years white will be a minority and we won’t complain as long as we get all the affirmative action benefits too :-)
I don’t see it a hassle when the Police do their job I pay taxes for and keep roads safe. I’m opposed to measures to just collect money that actually make driving less safe (red light camera with short yellow, for example). Any drunk driver removed from the street is good.
I don’t believe that whole minorities get more hassled thing. Proof to me that a minority gets hassled when the person has insurance, valid drivers license, doesn’t have a warrant, is not drunk or speeding, the vehicle is in safe condition etc. Maybe unjustified hassling happens every once a while, but not on a large scale. Every time someone gets “hassled” there is some violation. Every time some minority gets mistreated by the Police everything cries racism… until it turns out the cop was black.
While I disagree with the title of this article, the police officer certainly did have reasonable suspicion based on this driver’s behavior, it is not okay for police to indiscriminately pull motorists over. There needs to be reasonable suspicion, and I have gotten angry (twice now) for being pulled over precisely because I was doing nothing wrong. Twice in my last four trips to Idaho while travelling through Oregon, I have been pulled over by the Oregon State Police. The first time for, in the words of the officer, “driving 50ish” in a 55 zone. The second time for driving 61 (I was actually going 58 and getting passed by semis) in a 55 zone. You could argue that I was doing something wrong the 2nd time, but both times I was pulled over not for how I was driving but for what I was driving. Both times the officers questioned me “vigorously” about what I was doing in Oregon, where I was coming from, and where I was going to. During the 2nd instance the guy had the nerve to ask me “do you work”, which did cause me to snap a bit. The 2nd officer though surprised me though by admitting the truth, that he pulled me over because I have California Plates and he was stopping me to determine if I was transporting drugs based on how I looked and reacted to his questions.
In summary I was doing nothing wrong, yet I was angrybecause I was being hasseled by the police simply based on the license plate on my car. I do not think that the 4th amendment or any other part of the Constitution of the USA should be thrown out for safety reasons. In your world, I guess I was guilty of something though; I mean I was angry, right?
I’d be angry in your situation, too, but let me ask you this: If the first time you were pulled over, it was politely explained to you that Oregon has a problem with Cali drug runners, and they just wanted to make sure you were legit, would you still have been as angry?
Police work by following patterns. If a large percentage of Irish-Italian midgets are causing trouble in their district, can you blame them for looking closely at individuals who fit that profile? Likewise, if experience has proven that cars driven slowly or too cautiously after midnight often have a drunk behind the wheel, can you blame them for investigating further? The fact that they do this doesn’t bother me – within reason. What does bother me is when they forget: “Innocent until found guilty.”
If a large percentage of Irish-Italian midgets are causing trouble in their district, can you blame them for looking closely at individuals who fit that profile?
Profiling is constitutional. Racial profiling is absolutely not constitutional.
A legitimate profile generally has to have at least a couple of elements to it. An ethnic minority with out of state plates could not be stopped simply because he is an ethnic minority who has out of state plates. (Not that a cop would admit to such a thing if he knew better, but such a stop would not pass legal muster.) Race can be an element in certain cases, but it can’t be the only element.
Yes, I would still have been angry. The fact that I’m from California and obeying the laws of the road doesn’t automatically make me a meth head corrupting the youth of Oregon. It doesn’t even make it likely. It makes me very unwelcome in Oregon and makes it extremely unlikely that I will visit the state of Oregon while on vacation as I have done in the past. I feel so on edge driving through Oregon that I am seriously considering a route through Nevada that would add a little over 100 miles to the total travel distance but reduce the distance through Oregon by about the same amount. The time of travel will actually be only 5 minutes longer travelling at the speed limit because Nevada doesn’t have the same ridiculous 55 mph speed limits that Oregon does.
Additionally, the fact that I am of Western European descent shouldn’t make it all right for them to pull me over rather than someone who appears to be of Hispanic nationallity.
I’m with Wisconsin on this. I don’t believe that DUI drivers aren’t always racing at high speed or weaving.
The guy harmed no one. The cop should have left him the hell alone.
Certainly! And if I’m driving down the sidewalk, it’s totally cool as long as there aren’t any pedestrians on that sidewalk at the time. Likewise, I don’t see why they arrested my uncle for shooting at the mailman. I mean, he missed, didn’t he? Where is the problem?
–“The guy harmed no one. The cop should have left him the hell alone.”
It’s like saying that your wife can sleep with anyone, as long as there is no baby made and no disease caught.
Actually, as long as you don’t catch a disease it should be okay by that line of reasoning.
So the guy uses the excuse that his behavior should not be considered valid for a stop? And he’s drunk after all? Makes no sense. My cop friend has told me many stories about how people act when he is in his marked car. It is very obvious when somebody is trying their best not to be pulled over, especially when the subject is of the type that normally wouldn’t care about making a full stop before turning right on red. Like it or not, this kind of profiling is what cops do. Based on experience and observed behavior, a cop is going to make the call as whether to pull over or not.** My friend can predict pretty well if a subject is going to bolt if he throws the lights on. Such profiling really is only a problem is the cops were incorrect but act like a$$holes anyway. If I was pulled over and they found nothing wrong but were respectful, I would be ok with that. But if they are rude, search my car and throw my stuff all over (yeah, pretty common sad to say) and just drive away, well that is why so any people hate the cops. This case here? The police did their job, end of story.
** I had asked my friend years ago the question: Would you be more likely to pull over a car being extremely cautious or not? Answer was pretty basic. An older person driving a Marquis or Avalon would not be pulled over as he sees that they typically drive that way. That same Mercury driven that way at 2:30 am would likely get a look over as he does not expect the owner to be out at that time. Sporty young peoples’ cars do get a more in depth look if they are being driven in a super cautious manner. In fact, he expects that if the driver is not aware of the police presence, normal behavior would be to be more aggressive. Five over the limit or a very slow roll on a right on red would be the norm and he said he wouldn’t bother you. He once told me that basic police profiling experience is when an individual does not act in the manner that you expect them to. There may be very good reasons why they are not fitting the profile, but at that point the cop’s judgment comes into play as to finding out why.
As others have said, the cop saw a car out at night driving unusually, which he took as a sign that the driver might be drunk. He conducted a stop and found that the driver was, in fact, drunk. Sounds like this guy is doing his job pretty damn well, no?
Is it not the police’s job to further investigate when they see something unusual? As long as this is done professionally, I have no issue whatsoever. I’ve been pulled over and treated like a criminal for no reason I know of, had the police be rude, and then just drive away without any sort of explanation. That’s the way to gall people. A simple, polite stop wouldn’t bother me in the slightest, however, as long as it wasn’t happening every week.
What kind of loser can even pull the “I was pulled over without just cause” line with a straight face under these circumstances? Seriously? “I was drunk but it’s not fair I was pulled over, because I don’t think I looked like someone who was drunk”? He should have been laughed out of the courtroom!
“The Newspaper” Writes Deliberately Misleading Headline
What he said.
I’ve read The Newspaper off and on for years, and it seems to me that it’s becoming more sensationalistic by the day. The headline is just blatantly wrong — there isn’t a thing about it that is accurate.
The legal issue isn’t one of whether the driver committed a crime, but of whether the police had a “reasonable suspicion” to make a stop. “Reasonable suspicion” is below the standard of probable cause, and it allows the police to detain, frisk, question and briefly investigate to see then whether there is probable cause for an arrest. This is called a “Terry stop” and has been allowed for decades. http://definitions.uslegal.com/t/terry-stop/
The issue is that of the stop. A driver who is acting like a classic drunk driver while driving a car doesn’t have a defense against a stop. He might have one against an arrest if probable cause wasn’t developed during the stop, but that appears not to have happened in this case.
In the words of comedian Ron White,
“I was the victim of profiling… they were stopping every car driving down that sidewalk… and profiling is wrong.”
Back when I was in the service, I was on my way back to base after spending the evening enjoying the “keggers” in the orchards around Chico, CA during “Pioneer Week” at Cal State when I was 20.
As I had been driving for quite a while – it was a 60 mile trip, I was a few miles from the front gate of the base and I just had to pull off the road, as I was falling asleep and could no longer keep my eyes open.
It just so happened a CHP was behind me – this was on a two-lane road. I thought “oh no, now what?” I got out of my car and sat on the front fender of my car, as the CHP did not have its lights flashing, which is what I was going to do, anyway – I did this all the time.
The officer driving asked me what the problem was, and I truthfully told him. He asked if I had been drinking. I replied “yes, but not since around 9:30.” (this was about 12:30 am) All the while we were talking, his partner was looking over the car and said nothing. Finally, after asking to see my license – I still used my Missouri license – he left and merely said “drive carefully”. I politely thanked him and I sat on the fender and walked a bit, stretched, got back in the car and drove to the base.
So, was I nervous about this? You bet! Not that I had that much beer – I knew I had to drive about 60 miles, and felt the same way I do today about drinking and driving – but I could still feel some effect of the alcohol 3 to 4 hours later. I feel the effects of only one beer, now!
All in all, the CHP was doing its job, and I felt they were proper in requesting my license and such. I never felt threatened and they were as courteous as I. Perhaps it was because I was a clean-cut serviceman (I dressed quite neatly off-duty) and not some pot-head, long-haired, college draft-dodger or something!
When you are drunk and driving a car, you are not permitted to stop for your hallucinations. You are permitted to stop at intersections even when you have the right of way, when you see cars speeding towards the intersection at night with their lights off. You are permitted to stop at intersections when you see a naked person laying in the intersection. If the naked person is extremely unattractive, which would mean a normal person, you can stop, but you must roll down your window, honk your horn, and yell at them – “WTF are you doing, moron?”.
You can stop at an intersection of there is any roadkill larger than a full size tabby cat lying in the road. It is a part of our road culture to ensure that the cat is actually dead, to see if it is your neighbor’s cat, and to savor the moment of seeing a dead cat. Sometimes roadkill is enjoyable to view and it is within your rights as a driver to enjoy it. If you have kids in the car, you may use the moment to reinforce the need to keep your family pet in the house, or tied up ignored in the back yard.
You may not text that you see your neighbor’s cat dead in the road, regardless of how much you hate the cat and how it fertilized your garden, as it is illegal to text while driving.
You may stop at an empty intersection where you have the right of way if you hear a sound coming from your car which frightens you. If you are driving a non-GM vehicle, that is. Drivers in Pontiacs and Chevrolets, some late model Fords and Kias are expected to understand that their vehicles will make frightening noises under normal driving conditions. It is recognized in most US courts that these vehicles emit squeals, grinding, thuds, thumps and backfires at intersections.
You are permitted to stop at empty intersections to allow a passenger to vomit out a door or window. Especially if the passenger just saw their dead cat.
Today, the average American commits approximately 32 federal offenses daily. Fortunately no one really knows all the federal crimes on the books. This requires today’s police officers to stop citizens as a general rule to see which of the 32 federal crimes has occurred. Every American should be understanding that enforcing every federal law is a herculean effort so they should be ready to be strip searched at any time. Especially those Americans considered to be extremely attractive.
Driving is not a right, it is a priviledge. While it may be OK to smoke marijuana if your hair suffers from split ends, it is just flat out dead wrong to be an overly cautious drunk driver. If you are pulled over by a traffic cop, be prepared to strip, light up a joint and fake a limp.
Let’s see…a brand-new week…Here we go again!
Look at the judge’s photo!
He can’t even remove his folded arms enough to embrace that smiling lady holding the Everclear cocktail.
He has such a look on his face. He does not like being laughed at does he? I bet his eyeglasses have a very powerful prescription in them that allows him to see beyond anything humorous. It makes his eyes look like tiny specks of coal. See what is in his pocket? It is a memo pad he has carried since law school containing lists of stuff he needs to make sure he can fix by judging them just so! He finally got this case and he has made a check right next to “end the abuse of cautious drunk driving” – number 4234.
Obviously he is quite angry over the fact that she dumped that basket full of dirty clothes next to his favorite tree.
I bet he loves judging people he doesn’t know, right? I know I sure would!
You win.
The only times I find myself stopping where I have the right of way, it’s always because I’m distracted. Usually, distracted by reading the stupid Google Maps directions for this shitty labyrinthine ‘planned community’ the 50th time.
Stupid headline. Stopping at semi-random, non-stopping places is not cautious driving, it’s stupid, potentially dangerous driving.
Sounds like he was smoking a doob and not drinking.
I worked a night job for many years and I saw routine examples of cautious driving that was definitely the result of booze,drugs or any combination of both. The only thing more obvious would be a neon sign on their vehicles that flashed “Stop me I’m pissed, or possibly stoned or both”.
Years ago I lived in Biloxi and they had a nice shiny DUI task force van that would prowl the streets at night. They would yank over anyone who’s tire touched a painted line outside of their lane. Most of the pulled over motorists were not drunk but the time spent determining that was less time spent catching real drunk drivers.
Police manpower is limited so wasting it on these types of stops is not a good idea. Stopping on the road and standing next to the car is dangerous for the cop, and we don’t want to put them at risk now do we?
Stopping at multiple intersections at night is classic behavior of being lost and not necessarily of being drunk. With street signs positioned above the area illuminated by low beams and tree branches in the way, I’ve had to stop at multiple intersections just to read the sign. Sometimes even have to shine a flashlight on the sign.
If that’s the case, wouldn’t you be happy to have an officer check and make sure you were alright? I mean, there’s a good chance of something being wrong if you’re randomly stopping and slowing. You’d probably be relieved to see the guy, as he’d likely be able to help you find your way after determining you were safe and legal to drive, no?
Why would I be relieved when an officer of the state who can take away my property and my liberty, who operates on the a priori assumption that anything that I say or do can and will be used against me if at all possible, decides to intrude on my freedom of motion? I don’t want to offend but those who say “what do you care if you have nothing to hide?” are bootlickers. The Founding Fathers protected the rights of criminals because in the eyes of the crown they were criminals.
Unless you’re reporting a crime, there are only a few things you should say to a cop:
“I choose to remain silent”
“Am I free to go”
“I want my attorney”.
In addition to the egregiously misleading headline, I would also object to the photo of the judge that was used. Clearly, this is not an official photo…it looks like a personal shot, perhaps found on a social media site. But in posting that personal photo, The Newspaper is, at best, trying to publicly shame the judge (although his decision seems legally sound) or, at worst, trying to intimidate him.
My friend’s dad was diabetic and wasn’t taking his meds. This was how he drove when he was beginning to go into a coma. The police pulled him over one day on his way home and probably saved his life.
As stated above, I have no problem with this judge’s decision. I agree that the reported behavior was certainly suspicious. I just don’t think that the police should have the right to pull you over for driving while Californian anymore than driving while black (I believe that’s the expression). A line needs to be drawn to prevent the police from hasseling the general populace, adn judges are the ones who have the duty to draw that line. The statement that you have nothing to fear if you’re not doing anything illegal is just absolutely wrong.
The problem with the ruling is that it allows the police to define which non-criminal behaviors are suspicious. Driving late at night, in an unfamiliar area, looking for a street and stopping because you’re not sure whether to proceed or turn. What’s suspicious about that?
I got pulled over once for having my brights on in the middle of the night on an empty interstate. I’ve also been pulled over for turning on my lights when I realized they were off. I’d been to a blues club in Royal Oak, had a single 20 oz beer in three hours. It’s brightly lit up in downtown Royal Oak and it was not until I was approaching Woodward and turned them on while I was still in Royal Oak. When I crossed Woodward I noticed a Huntington Woods cop traveling in the other direction and said to myself, “He saw me turn my lights on, I bet he thinks I’m drunk”. Mind you, I did nothing suspicious while I was in his own jurisdiction, but he indeed pulled me over. Gave me a full roadside sobriety test, that I passed with flying colors. He was annoyed that he couldn’t give me a DUI, so for revenue purposes he wrote me up for displaying my license plate in the rear window (state law says that it has to be in a visible position).
The thing is that I don’t mind cops patrolling for drunks. That’s actually one of the more worthwhile things that cops do. But they do it for the wrong reasons. It’s all about revenue, like most traffic enforcement. If cops spent more time on actual safety and less time working as tax collectors they’d get a lot more cooperation from the public. Also, getting rid of “professional courtesy” for other cops would help too. Cops and municipalities love drunks. A DUI is a jackpot for the city, fines can run into the thousands, plus court fees. It costs almost nothing to prosecute since the prosecutor is already on salary or retainer (in the case of small cities).
While the Wisconsin case has at least a plausible basis, yes, drunks stop when they shouldn’t, there’s at least one case that a court upheld a drug conviction because the suspects were obeying the traffic laws. They saw the cop, started obeying every traffic law very carefully, and the cop decided that obeying the law was suspicious. Do I have to really explain just how absurdly totalitarian that is?
The problem with you guys who are saying “what’s the problem? the guy was drunk, acted drunk, and the cop acted on reasonable suspicions” is that a lot of case law that determines our rights in criminal investigations is based on cases that involved genuine criminals. Gideon was a thief. Miranda was a rapist. The point is that giving the police enough latitude to say that perfectly legal behavior is “suspicious” chips away at our freedom.