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In re Imposition of Costs on Attorney in State v. Mille11/27/2002
spicion standard is a fact-intensive inquiry which is continually evolving and may well turn on small distinctions, that an attorney is permitted to argue for the extension of existing law, and that an attorney is supposed to be accorded a presumption of having acted in good faith, we are satisfied that Koby could reasonably have argued that Swanson and other similar cases, though relevant, were distinguishable and should not control the outcome here. Therefore, while the trial court correctly concluded that the investigating officer had reasonable suspicion to support a temporary detention, we cannot say the suppression motion lacked a basis in fact or law, particularly in light of an attorney's ethical duty to zealously represent the interests of his client in the context of a criminal case. Here, the primary indication of intoxication was an odor of intoxicants on the defendant's breath and the record does not reveal whether it was a strong, weak, or moderate odor. While we agree that even a weak odor of intoxicants on a driver's breath, combined with a speeding violation at bar time, constitutes reasonable suspicion, we conclude it is not frivolous to argue otherwise. Accordingly, we reverse the order imposing sanctions on counsel.
By the Court. -- Order reversed.
This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)5.
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