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State v. Rex1/29/2003
. Wade J. Rex was found guilty by a jury of operating a motor vehicle while intoxicated. He raises three issues: (1) Whether his pretrial motion to suppress should have been granted on grounds that the officer had no reasonable suspicion to stop him, (2) Whether the trial court erred when ruling that an "automatic admissibility" issue should be resolved at trial rather than by pretrial motion, and (3) Whether the trial court erroneously exercised its discretion by permitting the State to cross-examine his expert witness about a threat the witness allegedly made to a co-worker when the expert was employed by the Chemical Test Section of the Wisconsin State Patrol. We address each issue seriatim and affirm.
REASONABLE SUSPICION TO STOP
. On June 21, 2001, at approximately 11:50 p.m., a village of Silver Lake police officer observed an operator of a motor vehicle driving erratically through the village. The first thing that drew the officer's attention to the operator was when he observed the operator make a left-hand turn onto a side street from a county highway. The officer testified that when the operator made the turn, the operator "came down almost to the curb line on the driver's side of the vehicle, which struck me as kind of, you know, unusual in making the turn." The officer began to follow the vehicle. The officer then observed that at the next cross street, the operator signaled for a left turn, but made a right turn. Then the operator went to the next intersection and again made a signal for a left turn, but made a right turn. Then the operator went back to the county highway, which is where he started in the first place. The officer observed that the operator was deviating within the lane of traffic from the fog line to the center line and back. The officer testified: "There is some curvy road through the village so I gave him the benefit of the doubt and waited until he was on a straight-a-way to determine whether or not I felt he was deviating within the lane or if he was going to go over." Based on these observations, the officer stopped the vehicle. The operator turned out to be Rex. He had the odor of alcohol on his breath and slurred his words. He failed the field sobriety tests and was arrested for operating a motor vehicle while intoxicated. He agreed to take the intoximeter test and the result was a blood alcohol level of .19 %.
. Prior to trial, Rex moved to suppress all evidence and statements taken from him at the scene of his detention and arrest, all observations made by the officer after the stop, any and all physical tests, and any other evidence procured as a result of the detention. The trial court heard the testimony and denied the motion. After being found guilty by a jury of operating while intoxicated, he commenced this appeal.
. Rex's main theme is that none of his operating episodes violated the law. Rex argues that it is permissible to weave within one's lane of traffic, it is permissible to make a turn the way he made the left turn and it is even permissible to signal one's intention to turn in one direction but end up going in the opposite direction, so long as no other traffic is affected. Rex posits that not only was his behavior lawful, it was not unsafe under the facts of the case. He claims that before an officer may stop a vehicle, the officer must believe that the person operating the suspect vehicle be "incapable of safely driving." He cites Wis. Stat. § 346.63(1)(a) for this proposition. Rex argues that he safely deviated in his own lane of travel, did not endanger any other traffic with erroneous signaling and did not endanger anyone when he turned left. Thus, he was not shown to be "incapable of safely driving" and t
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