By on May 4, 2010

Driving slowly is not a crime justifying a traffic stop, the Wisconsin Court of Appeals ruled last Wednesday. In an unpublished decision, Judge Anderson reviewed the events leading up to the August 13, 2008 arrest of Tommy K. Miller. At around 1:19am that morning, Miller’s white Lexus SUV passed by Hartland Village Police Officer Matthew Harper who happened to be patrolling Cottonwood Avenue. Miller was traveling 5 MPH.

Harper watched the SUV for a few seconds as it pulled into a parking lot. As he was about to investigate on foot, Harper saw the white SUV leave the lot. At some point, Miller turned back and drove past Harper slowly and accelerating to the speed limit after he passed. Harper floored his accelerator in pursuit, pulling over the SUV even though he admitted that he saw no traffic violation or any suspicious driving. Miller failed a breath test and was convicted of driving under the influence of alcohol (DUI). Judge Anderson only considered whether the initial traffic stop itself was justified.

The prosecution argued that the stop was justified because Officer Harper was acting as a “community caretaker” and ensuring that nothing was wrong with Miller that would have caused the slow driving at such a late hour. A circuit court agreed with this interpretation, but Anderson suggested the 2009 state Supreme Court case Wisconsin v. Kramer applied to the situation. In that ruling, the high court found that the community caretaker function must be “totally divorced” from his role of enforcing the law. In other words, a judge must evaluate whether the officer is acting on a hunch that a crime might be taking place, or whether he actually has an objectively reasonable reason for the stop.

“Harper did not testify that he was motivated by a belief that the driver was in need of any assistance, medical or mechanical,” Anderson ruled. “Additionally, Harper did not articulate an objectively reasonable basis for his actions as a community caretaker. Indeed, the record is void of any showing that Harper was concerned that Miller may have been in need of assistance. The record tells us little more than Harper ‘wanted to stop [Miller’s] vehicle right away before it merged onto [Highway] 16.’ Harper’s actions were not ‘totally divorced’ from his law enforcement function and, therefore, do not qualify as actions within his community caretaker function.”

The judgment against Miller was reversed. A copy of the opinion is available in a 30k PDF file at the source link below.

Source: PDF File Wisconsin v. Miller (Court of Appeals, State of Wisconsin, 4/28/2010)


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15 Comments on “Wisconsin: Slow Driving Not Cause For Traffic Stop...”

  • avatar

    Good ruling by the WCofA. I’m impressed.

  • avatar

    Even before I hit the jump to read the rest of the story I thought, “How high was he?” I’m amazed it was drink that got him to that point, I would have guessed weed.

  • avatar

    I am truly sorry a drunk got away with a crime, but I would like there to be a reason for people to be pulled over–like violating a law.

    As I have posted here before, I was pulled over in Wisconsin for driving too slowly (I was driving on the space saver spare tire after a blow out). Nothing makes a person feel more secure than having two squad cars pull up behind you, and when stopped, have the officers pull out their side arms.

    • 0 avatar

      That sounds like Don Knotts’ character in Mayberry RFD pulling a sidearm during a parking violation. Those guys need training and better judgment – and the observational skills to note a wagon wheel spare on a slow moving vehicle.

  • avatar

    I disagree; imo, driving that slowly IS dangerous enough to warrant a stop.

  • avatar
    John Horner

    Meanwhile, a drunk driver walks away with no penalty. No cause for celebration in this case.

    Putting along at 5 mph is one of the markers of a possible drunk driver and the cop was doing his job. The lawyers got it wrong this time.

  • avatar

    Harper did not testify that he was motivated by a belief that the driver was in need of any assistance, medical or mechanical

    If Harper had testified that, based on his observations, he was concerned that the driver was fatigued or otherwise impaired, would that have changed the court’s opinion? I would hope so.

    There are two types of drunk drivers – those convicted and those who can afford good and persistent legal representation. I’m no fan of MADD’s drive towards prohibition, but if Harper said the right words, I’m happy to have a drunkard with an (assumed) reasonably high BAC – Miller – stopped before he got on a main road and killed somebody. Last year my son was sideswiped by a hit’n’runner while on I-95. He was getting off second shift and time of day was about the same as in this case. It was only by the grace of God that he didn’t spin out at highway speeds. My son did get the license number and the responding cop’s first supposition was that the guy did a runner to avoid a DUI and maybe get clean away. The guy’s insurance company couldn’t have been nicer……I wonder if they have a special ‘concierge’ team for things like that.

  • avatar

    Some appear to love their “need for speed” and other opportunities to potentially harm others with their reckless (not wreckless) driving behavior to applaud impaired drivers who get away with their potentially harmful-to-others driving behaviors.

    My personal belief is that a me me me me attitude and lack of responsibility along with a sub-par morality comes to play so I will engage my own personal sub-par morality and hope that any and all who revel in impaired drivers successfully scoffing laws intended to protect the motoring public are the only vehicular targets impacted by drunk drivers so as to remove permanently from the roadways those possessing an attitude that forgoes concern for innocents harmed by impaired drivers.

    A sorta’ what’s good for the goose is just fine for the gander scenario.

  • avatar

    Cheer up everyone, he got pulled over in August two years ago. I’m sure he served whatever punishment is customary for a DUI winner in Wisconsin.

    Two issues here, 1)Illegal traffic stop and 2)Driving while intoxicated.

    Please don’t confuse the two topics as being one in the same while your busy trashing this guy. I personally am not ready just yet to give up all of my traffic stop rights.

  • avatar

    Why shouldn’t driving at least 20 mph below the speed limit be cause for a traffic stop? Second, one of the classic symptoms of driving while impaired is erratic speed not just an inability to stay between the lines on the road. The nature of his driving would seem to be probable cause for any half informed person to suppose that he was not in full possession of his faculties.

  • avatar

    If one can be stopped on the Interstate for driving too slowly, and causing a danger, why doesn’t this also apply to too slow on surface streets? I can’t quite understand why the officer was not justified as having probable cause.

    • 0 avatar

      I think you have to have a law against something specifically; just because something is a bad idea doesn’t automatically mean it’s illegal.

      Having suffered the local dimwits who putter around here at 38 in a 55, refusing to pull off to the side, I’m inclined to think that such a law might be a good idea. But if there isn’t one already, you can’t stop people for breaking it.

  • avatar

    Looks like john.fritz and myself are the only ones who read the whole story. Before you trash this guy so mush why bon’t you go and read the whole report. This guy was driving South and needed to go North on a road where it is not legal to make a u turn. At what speed would you make a turn into a driveway at? 5mph sounds reasonable to me.

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