514 N.W.2d 423
181 Wis.2d 369
OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT
UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE
CITED EXCEPT IN LIMITED INSTANCES.
STATE of Wisconsin,
Joseph R. REDA,
Court of Appeals of
Dec. 23, 1993.
appeals from his conviction for operating a motor vehicle under the
influence of an intoxicant, second offense, sec. 346.63(1)(a),
Stats. He seeks review of the order denying his motion to suppress
certain evidence. The issue is whether the arresting officer had
grounds for an investigative stop. The trial court held that the
officer did, and therefore the evidence obtained as a result of the
stop was admissible. We disagree and reverse.
The police may
make a traffic or investigative stop of a vehicle when the officer
"reasonably suspects" that the driver is committing, is about to
commit or has committed a crime. Section 968.24, Stats. Furthermore,
an officer may make an investigative stop when a driver's activity
can result either in a civil forfeiture or a criminal penalty. State
v. Krier, 165 Wis.2d 673, 678, 478 N.W.2d 63, 65(Ct.App.1991). The
officer testified at the suppression hearing that he stopped Reda
because Reda was speeding. Section 346.57, Stats. Speeding results
in a civil forfeiture. Section 346.60, Stats. Krier is not clear as
to whether an investigative stop may be made for an apparent traffic
violation which will result in a forfeiture and therefore is not a
crime. We need not decide that question, however, since Reda
correctly asserts that no evidence was produced at the hearing that
he was in fact speeding.
testified that he saw Reda's vehicle proceeding at a higher rate of
speed than other vehicles approaching the officer. The officer then
activated his radar. He attempted to testify that the radar showed
that Reda's vehicle was moving 69 miles per hour. The trial court
sustained Reda's objection to that testimony for lack of a proper
foundation. The officer was then asked whether the vehicle appeared
to him to be traveling in excess of the posted speed limit, 55 miles
per hour, and Reda again objected on grounds that no proper
foundation had been laid. The court responded that because the
officer had testified he had Reda "on moving radar," that provided a
"foundation for the statement that the vehicle was traveling at a
high rate of speed, given the fact that the speed limit was 55 miles
per hour." The court therefore overruled Reda's second objection.
A trial court
erroneously exercises its discretion when it relies on a faulty
rationale not based on facts of record. See Christensen v. Economy
Fire & Casualty Co., 77 Wis.2d 50, 55-56, 252 N.W.2d 81, 84(1977).
The court erroneously exercised its discretion by overruling Reda's
second objection, because moments before that ruling it had
sustained Reda's objection to the officer's testimony regarding the
radar reading on grounds that no foundation had been laid for that
testimony. Consequently, the radar reading was not in evidence, and
it provided no foundation for the officer's testimony that Reda's
vehicle appeared to be traveling in excess of the speed limit.
contends that this is not the case, since a reading of the
transcript of the officer's testimony "shows that only the
radar-related portion of his testimony was excluded by the trial
court. The trial court did not exclude the testimony to the effect
that visual observation indicated an excessive rate of speed." But
Reda objected to the officer's estimate based on the officer's
visual observation. The objection was overruled solely because the
officer's previous testimony that he "had him [Reda] on moving
radar" established a foundation for the officer's testimony
regarding his visual observation.
asserts that after Reda stopped his vehicle and left it, the officer
observed that Reda's gait was unsteady and his speech was slurred.
That does not meet Reda's argument that the officer lacked a
reasonable basis for stopping Reda's vehicle in the first place. The
only basis for the traffic stop was the officer's suspicion that
Reda was speeding, and no admissible evidence was offered to show
that speeding had occurred.
reason, the trial court erred when it denied Reda's motion to
suppress the evidence obtained as a result of the stop. Reda is
entitled to a new trial on the OMVWI charge at which the evidence
obtained as a result of the traffic stop may not be admitted.
Court.--Judgment reversed and remanded for a new trial.
will not be published. See Rule 809.23(1)(b)4, Stats.
1 This appeal is
decided by one judge pursuant to sec. 752.31(2)(f), Stats.