Striking Deer Insufficient to Establish Reasonable Suspicion in OWI Case
On April 22, 2015, the Wisconsin Court of Appeals issued a decision in Village of Chenequa v. Schmalz, 2015AP94-FT, an OWI case involving an interesting set of facts. Village Police Officer, Richard Johns, observed Schmalz’s vehicle traveling below the speed limit at 3:00 a.m. on a Sunday morning. Officer Johns also reported that Schmalz was driving “very close to the fog line.” While the Officer was following Schmalz, a deer crossed in front of and collided with Schmalz’s vehicle, causing the vehicle to spin. The officer reported seeing Schmalz’s brake lights go on just before the impact, but Schmalz did not stop immediately after the collision. Officer Johns did not see any substantial damage to the Schmalz vehicle nor did he report any unusual driving behavior after the collision that would suggest distress. Officer Johns stopped Schmalz and eventually cited him for OWI and PAC violations.
The trial court granted Schmalz’s motion to suppress all evidence gathered after the stop, explaining Schmalz’s driving behavior did not provide reasonable suspicion for the stop. Schmalz’s slow speed was warranted based on the darkness and fact that deer were present in the area, and the mere fact that Schmalz was operating near the fog line was not suspicious. In addition, the court noted there was no legal requirement that a driver stop after colliding with a deer. The court ultimately determined the stop was based on “perhaps a good guess,” which was not sufficient for the Village to meet its burden. Without the evidence obtained after the stop, the Village could not meet its burden on the OWI and PAC citations, so the trial court dismissed them.
The court of appeals affirmed the trial court, finding Schmalz’s behavior in driving below the speed limit and near the fog line was not inherently indicative of impairment. In addition, the court determined it could not infer that Schmalz saw the deer before the impact, negating the Village’s emphasis on the fact that Schmalz only briefly tapped his brakes prior to the collision. With only the time of day and day of the week and the fact that Schmalz did not stop after hitting the deer to rely upon as the basis for the stop, the Village did not meet its burden to demonstrate reasonable suspicion that Schmalz was committing a crime. The court of appeals also rejected the Village’s argument that the stop was warranted under the community caretaker doctrine, as there were no facts to indicate Schmalz required assistance.
While this case will not be published, it does provide an interesting look at the court’s fact-intensive analysis in determining whether reasonable suspicion exists. While the standard for reasonable suspicion is below that for probable cause, it is still a meaningful requirement and is often the subject of dispositive motions to suppress in OWI cases.
