Pothole defense wins the day

A West Allis police officer did not have enough reason to stop a driver after she abruptly swerved her car three times in her own lane, the Court of Appeals said Tuesday.

The driver, Teresa Michals, said she was just trying to avoid potholes, according to the opinion by William W.  Brash III. Brash upheld a ruling by Milwaukee County Reserve Judge Michael D. Guolee.

According to the opinion:

Officer Jason Komorowski was at a stoplight shortly after 9 p.m. March 16 when he saw Michals' car about three blocks away. She also was at a stop sign. Komorowski saw her car accelerate quickly when her light turned green. She also swerved three times within her lane.

Komorowski believed she was either intoxicated or driving in a disorderly manner. The officer made a traffic stop, and Michals was charged with refusing to take an intoxication test and first offense driving while intoxicated. 

She argued in circuit court that Komorowski did not have enough reasonable suspicion to justify the stop. "Komorowski testified that he could not determine the speed at which Michals was driving," Brash wrote. "Komorowski testified that Michals did not squeal her tires, she did not weave any of her wheels off the ground, an her vehicle was not unusually loud in any way."

Komorowski also said he did not know if Michals had any business in the area.

Michals testified that the Mini Cooper she was driving had a small wheel base that can easily be damaged by potholes.

"Michals testified that she swerved to avoid potholes and construction on the road to prevent damage to her vehicle," Brash said.

Komorowski said he did not remember if there was any potholes or construction.

"Komorowski’s observation at 9:11 p.m. on a Sunday of Michals quickly accelerating, swerving three times within a single lane of traffic to avoid potholes and construction, properly signaling her turns, and traveling a different direction than the address to which her vehicle was registered is not enough to create reasonable suspicion that Michals was either intoxicated or operating her vehicle in a disorderly manner," Brash wrote. "Based on our review of the record, we find there are no reasonable inferences that suggest criminal activity was afoot."​