City of Whitewater v. Douglas E. Kosch

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 13, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP800 Cir. Ct. No. 2020CV602

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

CITY OF WHITEWATER,

PLAINTIFF-RESPONDENT,

V.

DOUGLAS E. KOSCH,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Walworth County:
DANIEL STEVEN JOHNSON, Judge. Affirmed.

¶1 LAZAR, J.1 Douglas E. Kosch appeals from a conviction entered
after a jury found him guilty of operating a vehicle under the influence of an

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP800

intoxicant contrary to WIS. STAT. § 346.63(1)(a) and from a conviction for
unreasonably refusing an alcohol test pursuant to Wisconsin’s implied consent
statute, WIS. STAT. § 343.305(2). Kosch argues that police lacked both reasonable
suspicion for the initial traffic stop leading to his arrest and probable cause for his
arrest; that Wisconsin’s implied consent statute is unconstitutional; that he is
entitled to a mistrial due to the City of Whitewater’s improper closing arguments
made in his jury trial; and that his refusal to furnish a sample for alcohol testing
was not unreasonable. For the reasons that follow, this court concludes that none
of Kosch’s arguments warrant reversal. The convictions are affirmed.

BACKGROUND

¶2 Police involvement with the incident underlying Kosch’s convictions
began with a 911 call from a motel. The sole witness at the hearing on Kosch’s
motion to suppress evidence was an officer with nineteen years of experience who
responded to that call, Jennifer Ludlum. She testified that the caller reported “a
domestic incident between a male and a female.” When she and other officers got
to the motel, a motel employee described the “suspect vehicle” as a dark-colored
SUV, and the employee pointed the vehicle out to Ludlum.

¶3 Ludlum did not observe any traffic violations by the operator of the
SUV—Kosch—as he drove through the motel parking lot and into a parking lot
across the street, where she conducted a traffic stop on the vehicle. When Ludlum
spoke with Kosch from the passenger side of the vehicle, however, she noticed
that he had slurred speech. She asked him whether he had been drinking, and he
said “nothing, like two beers.” At that point, Ludlum asked Kosch to get out of
the vehicle and to perform standardized field sobriety tests (SFSTs). He complied.

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Ludlum testified that she observed numerous clues in Kosch’s performance of the
tests that suggested impairment.2

¶4 On cross-examination, Kosch established that Ludlum deviated from
standard procedures in conducting some of the SFSTs. For example, in the HGN
test, she did not hold the pen in the farthest positions to the right and left for four
seconds, as is standard. However, Ludlum stated that Kosch wasn’t fully
cooperating with her instructions on this test and had to be reminded to follow the
pen with his eyes multiple times. Ludlum made some errors in instructions for the
walk-and-turn test, such as not telling Kosch to walk a straight line, but she
indicated a straight line with her flashlight when telling him where to walk. In the
one-leg stand test, Ludlum testified that she counted two clues suggesting
impairment, but Kosch argued to the court that putting the foot down multiple
times is counted as one clue in standardized scoring of this test and that an officer
is required to observe at least two clues to draw an inference of impairment. The
footage of the SFSTs, played for the trial court, also showed that Kosch told
Ludlum he suffered from diabetes and that he had some issues with his back,
knees, ankles, and hips. After conducting the SFSTs, Ludlum asked Kosch to take
a preliminary breath test, which he declined. Ludlum “believed that he was
impaired” and placed him under arrest.

2
For instance, in the horizontal gaze nystagmus (HGN) test, Kosch’s eyes did not
smoothly follow the pen she was holding, and they showed sustained nystagmus (rapid
movement) when focused on the pen in the farthest positions from center. In the walk-and-turn
test, Kosch stepped off the line multiple times, failed to walk heel-to-toe for some steps, and took
more steps than instructed. Finally, in the one-leg stand test, Kosch put his raised foot down three
times.

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¶5 The trial court denied Kosch’s motion to suppress evidence,
concluding that officers had reasonable suspicion for the traffic stop, probable
cause for requesting a preliminary breath test, and probable cause for arrest. The
court acknowledged that the testimony offered by the City “on why the officer was
at the motel” was a bit unclear; there was a “domestic incident type complaint,”
but the testimony did not establish “who made the call, whether it was the
defendant, his wife or some other third party” or any other details about what had
happened. Nevertheless, in part based on its review of the officer’s body camera
footage, the court determined that the officers on the scene talked with a motel
employee who provided information that prompted Ludlum to pursue Kosch’s
vehicle. So despite “some concerning aspects regarding the level of evidence that[
was] submitted regarding reasonable suspicion,” the court concluded that “there
was reasonable suspicion to pull Mr. Kosch over to get further information from
him regarding this domestic incident which it appears he was part of based on the
[m]otel employee’s description and information.” In denying Kosch’s motion to
reconsider this decision, the court further explained that “domestic” is a “term of
art in the legal world”—it typically means “a crime associated with a domestic
relationship[,] … usually a battery or disorderly conduct.” The court elaborated,
saying “that term of art when used in this context and I think context is important,
does give reasonable suspicion which is a fairly low bar, for the contact that was
made here to be made by the law enforcement officer and ultimately the
investigation to continue.”

¶6 The trial court characterized this as a “very close case” with respect
to probable cause. But again, despite the deviations from standard procedures on
the SFSTs (which decreased their probative value to some extent), the court
determined that there were sufficient indicia of intoxication from Kosch’s

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No. 2022AP800

performance on those tests to satisfy the standard of probable cause necessary to
ask for a preliminary breath test, which is “lower than the amount of probable
cause needed to arrest.” Kosch’s refusal to submit to a preliminary breath test—
though within his rights—showed consciousness of guilt that, when viewed
together with the other facts gathered up to that point, provided probable cause for
arrest.

¶7 The trial court also denied Kosch’s separate motion seeking a
declaration that Wisconsin’s implied consent law is unconstitutional. In so doing,
the court explained that it was bound by this court’s decision in State v.
Levanduski, 2020 WI App 53, 393 Wis. 2d 674, 948 N.W.2d 411, review denied
(WI Nov. 18, 2020) (No. 2019AP1144-CR). The court said it was required by
precedent to reject Kosch’s argument that the use of a defendant’s refusal to
submit to an alcohol test against him in court violates the Fourth and Fifth
Amendments.

¶8 At trial on Kosch’s OWI charge, the jury heard extensive testimony
about what occurred in the course of the traffic stop, including testimony from
Ludlum about Kosch’s performance on the SFSTs and a robust cross-examination
establishing the deviations from standard procedures in conducting those tests. In
the City’s rebuttal to the defense’s closing argument, counsel argued:

The defense is suggesting that you should find the
defendant not guilty, but you have to look at what that
entails. OWIs are a huge problem in our state and our
country, causing injuries and deaths every single year.
Officer Ludlum did a fantastic job investigating this
situation and ultimately placing the defendant,
Douglas Kosch, under arrest for operating while under the
influence. Enforcement of operating under the influence is
not complete until those who violate those laws are found
guilty. Therefore, I’m asking you—I’m asking that you
complete that process and find the defendant,
Douglas Kosch, guilty of operating under the influence.

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¶9 Kosch requested a sidebar and objected to this argument.3 The trial
court then provided a curative instruction before reading the jury instructions for
the case:

I’m simply going to preface my remarks by simply saying
that these jury instructions are important and obviously the
laws in our state are important. It’s important that you
consider this case only based on the laws that exist in our
state and not based on any emotion. Regardless of whether
we do or do not have an OWI problem or—in this state or
in this county, that’s not something you should or can
consider in determining the guilt or innocence of the
defendant here today. You’re to look solely at the facts of
this case and ultimately make findings regarding what you
believe the facts are, apply the law that I’m going to give
you to those facts in these instructions and then base your
verdict solely on the facts and the law as you find—the law
as I give to you.

¶10 In reading its remaining standard jury instructions, the trial court
also reminded the jury that “[r]emarks of the attorneys are not evidence” and that
it should “[c]onsider carefully the closing arguments of the attorneys” but that
“their arguments and conclusions and opinions are not evidence.” The court
rejected Kosch’s motion for a mistrial based on the City’s closing argument,
which Kosch argued improperly commented on allegedly “inflammatory” matters
not in evidence (like the fact that OWIs are a major problem in this country) and
asked jurors, in essence, to “step into the shoes of the cop” and “do justice for the
unspoken victims.” The court determined that its curative instructions were
sufficient to mitigate any prejudice caused by the “somewhat problematic”
closing.

3
The sidebar was not contemporaneously recorded by the court reporter, as is the best
practice, but the trial court and counsel did place their positions, arguments, and ruling on the
record after the curative instruction and other instructions were given and the jury left to begin its
deliberations.

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No. 2022AP800

¶11 The jury found Kosch guilty of operating a motor vehicle while
under the influence of an intoxicant. Kosch requested a hearing before the trial
court on the issue of whether his refusal to submit to a breath test for alcohol was
unreasonable, which was held while the jury was on a break during Kosch’s trial.
The court determined that Kosch’s response to Ludlum’s request for a breath
test—“no, no, not without a lawyer”—constituted a legal refusal that was
unreasonable based on its conclusions that there was reasonable suspicion for the
stop and probable cause for the request and arrest and its finding that Ludlum
“clearly read the [Informing the Accused] form to the defendant.” Kosch appeals
on multiple issues.

DISCUSSION

¶12 Kosch renews arguments made to the trial court regarding
reasonable suspicion for the initial stop and probable cause to request a
preliminary breath test and for arrest; constitutionality of this state’s implied
consent statute; prejudice due to the City’s closing argument; and the
reasonableness of his refusal to submit to a breath test for alcohol. This court will
address each argument in turn.

I. Reasonable Suspicion/Probable Cause

¶13 Kosch’s first argument on appeal is that the trial court erred by not
granting his motion to suppress and motion to reconsider on the grounds that the
initial traffic stop, request for a preliminary breath test, and arrest all violated his
Fourth Amendment right to be free from unreasonable search and seizure. See
Davis v. United States, 564 U.S. 229, 236 (2011) (“The Fourth Amendment
protects the ‘right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.’”) (quoting U.S. CONST.

7
No. 2022AP800

amend. IV). The question of whether a seizure is reasonable presents an issue of
constitutional fact, which requires this court to give “deference to the [trial]
court’s findings of evidentiary fact, and … review[] independently the [trial]
court’s application of those facts to constitutional standards.” See State v.
Malone, 2004 WI 108, ¶14, 274 Wis. 2d 540, 683 N.W.2d 1.

¶14 Ludlum’s initial investigatory stop of Kosch must be analyzed first.
There is no question that this stop was a “seizure” subject to Fourth Amendment
protections. See Whren v. United States, 517 U.S. 806, 809-10 (1996); State v.
Rutzinski, 2001 WI 22, ¶14, 241 Wis. 2d 729, 623 N.W.2d 516. To justify such a
stop, an officer must have (at minimum) a reasonable suspicion that the driver has
committed an offense.4 United States v. Hensley, 469 U.S. 221, 226 (1985);
Rutzinski, 241 Wis. 2d 729, ¶14. This is a “common sense test” and looks to
“[w]hat … a reasonable police officer [would] reasonably suspect in light of his or
her training and experience.” State v. Waldner, 206 Wis. 2d 51, 56, 556 N.W.2d
681 (1996). This means “the officer must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
objectively warrant a reasonable person with the knowledge and experience of the
officer to believe that criminal activity is afoot.” Rutzinski, 241 Wis. 2d 729, ¶14
(citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). Courts are to “assess reasonable

4
The City argues for the first time on appeal that Ludlum was justified in stopping
Kosch because she was performing her role as a community caretaker. Even assuming this
argument was not waived per State v. Reese, 2014 WI App 27, ¶14 n.2, 353 Wis. 2d 266, 844
N.W.2d 396 (stating that a “court need not address arguments that are raised for the first time on
appeal”), this court rejects that argument because the City has not met its burden to show any
objectively reasonable basis for Ludlum to believe that Kosch was in need of assistance. See
State v. Kramer, 2009 WI 14, ¶¶30, 36, 315 Wis. 2d 414, 759 N.W.2d 598 (officer must have an
objectively reasonable basis for a community caretaker function as distinguished from detection,
investigation or acquisition of evidence).

8
No. 2022AP800

suspicion in light of the totality of the circumstances.” State v. Richey, 2022 WI
106, ¶9, 405 Wis. 2d 132, 983 N.W.2d 617.

¶15 “Reasonable suspicion is ‘a low bar[.]’” State v. Nimmer, 2022 WI
47, ¶25, 402 Wis. 2d 416, 975 N.W.2d 598 (alteration in original; citation
omitted). It requires less certainty than probable cause. State v. Eason, 2001 WI
98, ¶19, 245 Wis. 2d 206, 629 N.W.2d 625. But, it must be based on more than an
officer’s “inchoate and unparticularized suspicion or ‘hunch.’” State v. Post, 2007
WI 60, ¶10, 301 Wis. 2d 1, 733 N.W.2d 634 (quoting Terry, 392 U.S. at 27).

¶16 The articulated facts here include only a 911 call from a motel
regarding a “domestic incident between a male and a female,” a motel employee’s
pointing out of a particular dark SUV, and the fact that that vehicle was leaving
the scene. This court also accepts the trial court’s factual finding that “the officers
were speaking in the lobby with an employee of the motel … in the course of
executing [their] investigation” because it is not clearly erroneous. Given the “low
bar” of reasonable suspicion, e.g., State v. Genous, 2021 WI 50, ¶8, 397 Wis. 2d
293, 961 N.W.2d 41, this court reaches the same conclusion as the trial court,
despite sharing that court’s concerns about the sparseness of facts elicited at the
suppression hearing.

¶17 A reasonable officer in Ludlum’s position could rationally infer from
the articulated facts that a crime had been committed at the motel; “domestic
incident” is indeed a term of art in the law that strongly suggests domestic abuse, a
crime that requires arrest in certain circumstances, see WIS. STAT. § 968.075(2),
especially when the report of the “domestic incident” was made in a 911 call.
Such an emergency call implies that the caller believed someone to be in danger of
imminent bodily harm, which implicates the crime of battery. See WIS. STAT.

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§ 940.19.5 It is also reasonable to infer from these facts that the motel employee
pointed out Kosch’s particular vehicle because the employee believed the driver
was involved in the incident and was attempting to leave the scene because he had
committed some offense. The totality of the circumstances, although they do not
paint a complete picture of what was known about Kosch’s involvement and what
specific crime might have been committed, are sufficient to support a reasonable
suspicion that Kosch had committed an offense. Thus, this court concludes the
initial stop did not violate Kosch’s Fourth Amendment rights.

¶18 This court now moves on to the next event. Kosch does not
challenge Ludlum’s lawful extension of the stop to investigate whether he was
impaired after she observed his slurred speech and he admitted that he had
consumed some alcohol that day. He does argue, however, that Ludlum lacked
probable cause to request a preliminary breath test after she conducted SFSTs. An
officer may request a person to take a preliminary breath test if the officer has
probable cause to believe that the person has committed an impaired driving
offense. WIS. STAT. § 343.303. This standard is greater than that required for an
investigative stop but less than that required for arrest. County of Jefferson v.
Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541 (1999).

¶19 Here, Ludlum requested a preliminary breath test after observing
Kosch’s slurred speech, hearing Kosch’s admission that he had consumed alcohol
that day, and after seeing Kosch perform SFSTs in which he could not smoothly
follow the pen being moved horizontally by Ludlum (and was unable to follow her

5
The City also argues, aptly, that law enforcement could reasonably have believed that
Kosch had disturbed the peace or was involved in disorderly conduct—both or either of which
could be violations of municipal code ordinances or even state statutes.

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No. 2022AP800

instructions for other parts of that test), failed to step heel-to-toe in a straight line
as instructed, and was unable to balance on one leg for more than a few seconds.
Although Kosch argues that “the trial court should not have given any evidentiary
weight to the field sobriety test results” due to these potential imperfections, this
court is mindful that SFSTs need not be performed according to strict protocols in
order to yield probative or “valid” results; “[t]hey are observational tools, not
litmus tests that scientifically correlate certain types or numbers of ‘clues’ to
various blood alcohol concentrations.” City of West Bend v. Wilkens, 2005 WI
App 36, ¶17, 278 Wis. 2d 643, 693 N.W.2d 324.

¶20 The trial court appropriately discounted the value of those tests it
found to be less relevant based on Kosch’s cross-examination of Ludlum; for one
example, it explicitly “put lower weight” on some of the clues Ludlum reported in
the HGN test because “[t]he stimulus was not held at maximum deviation for the
requisite amount of time.” And the court considered that “Kosch may have had
some physical impairments that affected his ability to appropriately complete the
tests,” namely his diabetes and back/leg issues. But the court took “at face value”
Ludlum’s testimony that she had observed Kosch enough “based on her training
and experience” of nineteen years in law enforcement to determine that “he would
be physically able to complete the tests or at least … have a fair opportunity to
complete them.” See State v. Wille, 185 Wis. 2d 673, 682, 518 N.W.2d 325 (Ct.
App. 1994) (“The trial court takes evidence in support of suppression and against
it, and chooses between conflicting versions of the facts. It necessarily determines
the credibility of the officers and other witnesses.”)

¶21 The trial court obviously rejected the implication that Ludlum’s
deviations from standard procedures or Kosch’s medical condition affected his
ability to perform the tests whatsoever and found that other clues from the SFSTs

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(including lack of eyes smoothly following stimulus, an inability to keep heel-to-
toe formation and to walk in a straight line, and an inability to balance on one
leg)—in addition to the fact that Kosch sometimes displayed an inability to follow
the directions which itself “can be looked at as a concern regarding whether he’s
impaired”—were indicia of intoxication. This factual finding is not clearly
erroneous. See Malone, 274 Wis. 2d 540, ¶14. Accepting the trial court’s factual
findings regarding the SFSTs, this court agrees that, together with the slurred
speech and admission to drinking, they provide probable cause to believe Kosch
was operating while impaired and thus that the standard for requesting a
preliminary breath test was met in this case.

¶22 Finally, Kosch argues that the totality of the circumstances did not
give rise to probable cause for his arrest. As mentioned, this standard is higher
than that needed to request a preliminary breath test; an officer has probable cause
to arrest when she has “that quantum of evidence within [her] knowledge … that
would lead a reasonable law enforcement officer to believe that the defendant was
operating a motor vehicle while under the influence of an intoxicant.” State v.
Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551. The question of
probable cause must be assessed by “looking at the totality of the circumstances.”
Id., ¶20. Kosch’s argument is based on the premise that the results of the SFSTs
conducted by Ludlum were entitled to no evidentiary weight and that the trial
court could not legally consider his refusal to take a preliminary breath test as
evidence of consciousness of guilt. Kosch is wrong on both of these premises.

¶23 First, as stated above, SFSTs are relevant to a court’s analysis and, in
this case, along with Kosch’s slurred speech and admission of drinking, provided
significant indicia of impairment. As stated in Wilkens, “when an officer-
particularly one with [nineteen] years of law enforcement experience …

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determines that a driver fails not one but three FSTs, it is more probable that the
person has an illegal blood alcohol concentration than if the officer determined he
or she passed the tests,” and this court “cannot conclude that the trial court erred in
considering the evidence.” 278 Wis. 2d 643, ¶14 (discussing observations of an
officer with sixteen years of law enforcement experience).

¶24 Second, none of the cases cited by Kosch say that a refusal to take a
preliminary breath test cannot be used against the refuser in court.6 To the
contrary, refusal to submit to a preliminary breath test is a fact that may be
considered evidence of consciousness of guilt for the purpose of establishing
probable cause to arrest. See State v. Babbitt, 188 Wis. 2d 349, 359, 525 N.W.2d
102 (Ct. App. 1994) (holding this with respect to a refusal to submit to SFSTs).
This court agrees with the trial court that under the totality of the circumstances,
Ludlum had probable cause to arrest Kosch for operating a vehicle while under the
influence of an intoxicant.

II. Constitutionality of Implied Consent Statute

¶25 Kosch next seeks dismissal of his refusal proceedings, arguing that
Wisconsin’s implied consent statute is unconstitutional because it “prospectively

6
Kosch cites cases that do not deal with refusals in the context of submitting to requests
for chemical tests supported by probable cause but rather concern cooperation with police where
there is no reasonable suspicion or probable cause to support a search or seizure. See Florida v.
Bostick, 501 U.S. 429, 433-37 (1991) (noting that there was no reasonable suspicion, reiterating
that a consensual encounter does not trigger Fourth Amendment scrutiny, and holding that the
appropriate test for whether a seizure occurs on a bus is whether a reasonable person would feel
free to decline the officers’ requests); INS v. Delgado, 466 U.S. 210, 216-21 (1984) (holding that
surveys in which workers were asked about citizenship but were free to continue working or to
move around factory did not constitute seizures); Florida v. Royer, 460 U.S. 491, 507 (1983)
(detention of individual is a seizure that must be supported by probable cause); State v. Griffith,
2000 WI 72, ¶52, 236 Wis. 2d 48, 613 N.W.2d 72 (questioning of a passenger in a car was
reasonable).

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threatens to punish people for exercising their Fourth Amendment right to refuse
to provide voluntary consent[] and their Fifth Amendment right to remain silent
without penalty in criminal cases.” Challenges to the constitutionality of a statute
are reviewed de novo. State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780
N.W.2d 63. Statutes are presumed to be constitutional, and the party challenging a
statute must prove its unconstitutionality beyond a reasonable doubt. Id., ¶15. To
succeed on a facial challenge, a party must prove that the law cannot be enforced
“under any circumstances.” Id., ¶13 (citation omitted). To successfully challenge
a statute as applied to a particular litigant, by contrast, the litigant must show that
his constitutional rights were actually violated. Id. Kosch raises both types of
challenges.

¶26 Every state has some version of an implied consent law that requires
motorists, as a condition of driving in the state, to consent to blood alcohol content
testing if they are suspected of impaired driving. Missouri v. McNeely, 569 U.S.
141, 161 (2013). Wisconsin’s statute provides:

At the time that a chemical test specimen is requested …
the law enforcement officer shall read the following to the
person from whom the test specimen is requested:

“You have either been arrested for an offense that
involves driving or operating a motor vehicle while under
the influence of alcohol or drugs, or both ….

This law enforcement agency now wants to test one or
more samples of your breath, blood or urine to determine
the concentration of alcohol or drugs in your system. If any
test shows more alcohol in your system than the law
permits while driving, your operating privilege will be
suspended. If you refuse to take any test that this agency
requests, your operating privilege will be revoked and you
will be subject to other penalties. The test results or the
fact that you refused testing can be used against you in
court.”

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No. 2022AP800

WIS. STAT. § 343.305(4) (emphasis added).

¶27 Kosch acknowledged before the trial court that “the big barrier here”
in terms of his constitutional challenge is Levanduski. In that case, Levanduski
challenged the language emphasized above, which was read to her before she
consented to a blood alcohol test,7 as an incorrect statement of the law.
Levanduski, 393 Wis. 2d 674, ¶3. She asserted that her refusal could not
constitutionally be used against her in court and thus that her consent (made with
alleged misinformation) was involuntary. Id. The Levanduski court addressed
the identical argument that Kosch makes: that there is a “constitutional right to
refuse to submit to [alcohol testing]” and that a defendant’s right to refuse testing
is violated if the refusal is used against the defendant. See id. Levanduski is not
simply a “big barrier,” it is insurmountable precedent and directly on point.

¶28 Kosch asserts, as Levanduski unsuccessfully did, that the relatively
recent decisions from the United States Supreme Court and our state supreme
court, especially Missouri v. McNeely, Birchfield v. North Dakota, 579 U.S. 438
(2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120,

7
Although a blood draw was at issue in State v. Levanduski, 2020 WI App 53, ¶1, 393
Wis. 2d 674, 948 N.W.2d 411, review denied (WI Nov. 18, 2020) (No. 2019AP1144-CR), and a
preliminary breath test was requested of Kosch, these two types of alcohol tests are treated the
same in WIS. STAT. § 343.305(4), and both are “searches” for the purposes of the Fourth
Amendment, see Birchfield v. North Dakota, 579 U.S. 438, 454-55 (2016).

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No. 2022AP800

reflected a change in constitutional law.8 This change, according to both Kosch
and Levanduski, means that the 1983 case of South Dakota v. Neville, 459 U.S.
553, 560 (1983)—which held that “a person suspected of drunk driving has no
constitutional right to refuse to take a blood-alcohol test”—is no longer controlling
and that the refusal of a person suspected of driving under the influence cannot
constitutionally be used against the person in court. See Levanduski, 393 Wis. 2d
674, ¶¶7, 10-11.

¶29 The Levanduski court held, however, that while a “State may not
make a drunk-driving suspect’s refusal a crime itself, [it] may impose civil
penalties and ‘evidentiary consequences’ on such refusals.” Id., ¶12 (citation
omitted). Our supreme court declined to review that decision. We are bound to

8
The Levanduski court discussed each of these cases as follows. Missouri v. McNeely,
569 U.S. 141, 160-61 (2013), a Fourth Amendment case about warrantless nonconsensual blood
draws, “recognized as an acceptable ‘legal tool[]’ using the fact of a defendant’s refusal against
the defendant ‘in a subsequent criminal prosecution.’” Levanduski, 393 Wis. 2d 674, ¶11
(alteration in original; quoting McNeely, 569 U.S. at 160-61). Birchfield, discussing implied
consent laws in the Fourth Amendment context, held “that a refusal to submit to a blood test
cannot be the basis for a separate criminal charge” but “reiterated the lawfulness of implied-
consent laws that impose ‘civil penalties and evidentiary consequences’ on motorists who refuse
to submit to a [test].” Levanduski, 393 Wis. 2d 674, ¶12 (quoting Birchfield, 579 U.S. at 476-
77). Finally, in State v. Dalton, 2018 WI 85, ¶¶58-60, 383 Wis. 2d 147, 914 N.W.2d 120, our
supreme court held that it was unlawful to sentence a person convicted of operating while
intoxicated to a longer jail term solely based on his refusal to submit to alcohol testing but also
“acknowledged that imposing ‘civil penalties and evidentiary consequences’ on drunk-driving
suspects who refuse to submit to a blood draw is lawful under the Fourth Amendment.”
Levanduski, 393 Wis. 2d 674, ¶13 (quoting Dalton, 383 Wis. 2d 147, ¶58).

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follow Levanduski and reject Kosch’s constitutional challenge on that basis.9 See
Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (“[P]ublished
opinions of the court of appeals are precedential.”). Under our precedent, this
court cannot conclude that Wisconsin’s implied consent law is unconstitutional on
its face because its imposition of the civil penalty of license revocation and the
evidentiary consequence of using of the refusal against a defendant in court
violates neither the Fourth nor the Fifth Amendments. See Levanduski, 393
Wis. 2d 674, ¶15. This court cannot conclude that the statute is unconstitutional as
applied to Kosch for the same reason.

III. Closing Argument by the City

¶30 Kosch also argues that the trial court erred in denying his motion for
a mistrial based on the City’s closing arguments. He contends the arguments were
improper because the City commented on matters not in evidence, such as the
alleged fact that “OWIs are a huge problem in our state and our country, causing
injuries and deaths every single year,” and because it asked the jury to “complete
[the] process” started by Ludlum to “find the defendant, Douglas Kosch, guilty.”
He also asserts that the curative instructions supplied by the trial court were
insufficient to cure the prejudice to him from these improper arguments.

9
Kosch asserts that “no Wisconsin court has addressed whether the rule announced by
the U.S. Supreme Court in Griffin v. California[, 380 U.S. 609 (1965)] has been rendered
applicable to the implied consent statute as a result of recent U.S. Supreme Court decisions on
impaired driving cases.” Griffin is a 1965 case that held a prosecutor’s comment on a
defendant’s refusal to testify in a criminal trial violated his Fifth Amendment right. Id. at 615.
Since then, the United States Supreme Court has addressed implied consent in the 2013 McNeely
opinion and the 2016 Birchfield opinion. Kosch cites no case postdating the 2020 opinion in
Levanduski as changing the legal landscape. His argument that Levanduski interpreted United
States Supreme Court cases incorrectly or failed to consider Griffin is one for the Wisconsin
Supreme Court, not this court.

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No. 2022AP800

¶31 Decisions on objections to closing arguments are within the trial
court’s discretion, and this court affirms the court’s ruling “unless there has been a
misuse of discretion which is likely to have affected the jury’s verdict.” State v.
Neuser, 191 Wis. 2d 131, 136, 528 N.W.2d 49 (Ct. App. 1995). The prosecutor’s
arguments are to be viewed “in the context of the entire trial.” Id. A trial court’s
decision to order a mistrial is also discretionary. State v. Seefeldt, 2003 WI 47,
¶13, 261 Wis. 2d 383, 661 N.W.2d 822. The trial court’s ruling on “a motion for
mistrial on the grounds of improper prosecutorial conduct …will not be reversed
by this court unless there is evidence of abuse of discretion and prejudice to the
defendant.” State v. Camacho, 176 Wis. 2d 860, 886, 501 N.W.2d 380 (1993)
(citation omitted), modified on other grounds by State v. Head, 2002 WI 99, ¶104,
255 Wis. 2d 194, 648 N.W.2d 413; see also State v. Adams, 223 Wis. 2d 60, 83,
588 N.W.2d 336 (Ct. App. 1998) (holding that appellate courts reverse denials of
mistrials only if there is a “clear showing” that there was an erroneous exercise of
discretion10). Not all errors “warrant a mistrial and ‘the law prefers less drastic
alternatives, if available and practical.’” State v. Givens, 217 Wis. 2d 180, 191,
580 N.W.2d 340 (Ct. App. 1998) (citation omitted).

¶32 Our supreme court set forth the relevant standard in State v. Hurley,
2015 WI 35, ¶96, 361 Wis. 2d 529, 861 N.W.2d 174:

“When a defendant alleges that a prosecutor’s
statements constituted misconduct, the test we apply is
whether the statements so infected the trial with unfairness
as to make the resulting conviction a denial of due
process.” [State v. Davidson, 2000 WI 91, ¶88, 236
Wis. 2d 537, 613 N.W.2d 606.] “Even if there are

10
Since 1992, Wisconsin cases “use the phrase ‘erroneous exercise of discretion’ in
place of the phrase ‘abuse of discretion,’” but the phrases have equivalent meaning. Seifert v.
Balink, 2017 WI 2, ¶93 n.50, 372 Wis. 2d 525, 888 N.W.2d 816.

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No. 2022AP800

improper statements by a prosecutor, the statements alone
will not be cause to overturn a conviction. Rather, the
statements must be looked at in context of the entire trial.”
[State v. Mayo, 2007 WI 78, ¶43, 301 Wis. 2d 642, 734
N.W.2d 115]; see also United States v. Young, 470 U.S. 1,
11 (1985) (“[A] criminal conviction is not to be lightly
overturned on the basis of a prosecutor’s comments
standing alone, for the statements or conduct must be
viewed in context; only by so doing can it be determined
whether the prosecutor’s conduct affected the fairness of
the trial.”).

Id. (third alteration in original).

¶33 “Attorneys are accorded ‘considerable latitude in closing
arguments.’” State v. Mader, 2023 WI App 35, ¶62, 408 Wis. 2d 632, 993
N.W.2d 761 (citing State v. Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798
N.W.2d 166); State v. Nielsen, 2001 WI App 192, ¶46, 247 Wis. 2d 466, 634
N.W.2d 325. This court questions whether the City’s closing arguments related to
the seriousness of impaired driving crossed “[t]he line between permissible and
impermissible argument” by “suggest[ing] that the jury should arrive at a verdict
by considering factors other than the evidence.” See Neuser, 191 Wis. 2d at 136.
Instead, the comments at issue relate to “matters of common knowledge,
observations and experience in the affairs of life,” State v. Powell, 2012 WI App
33, ¶14, 340 Wis. 2d 423, 812 N.W.2d 520, and could be viewed as an appeal to
the jury to take seriously its role in evaluating the evidence in this impaired
driving case. See State v. Draize, 88 Wis. 2d 445, 450, 276 N.W.2d 784 (1979)
(affirming as proper prosecutor’s closing argument that jury should speak to the
defendant through its verdict by “telling him, look, this is not the kind of driving
you engage in”). Indeed, the United States Supreme Court has commented on the
“tragic frequency” of impaired driving and the terrible “carnage caused by drunk
drivers” in this country, Neville, 459 U.S. at 558, and our state supreme court has
characterized drunk driving as “a scourge on society,” State v. Nordness, 128

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No. 2022AP800

Wis. 2d 15, 33, 381 N.W.2d 300 (1986). Nor do the comments of completing the
job started by law enforcement seem particularly problematic; it is routine for
prosecutors to ask the jury to convict a defendant.

¶34 Regardless, the trial court sustained Kosch’s objection and issued a
curative instruction, asking the jury to ignore “whether we do or do not have an
OWI problem … in this state or in this county” because “that’s not something you
should or can consider in determining the guilt or innocence of the defendant here
today.” The court also told the jury that attorney argument was not to be
considered as evidence. As Kosch acknowledges, curative instructions are
presumed to be sufficient to ameliorate prejudice. See State v. Gary M.B., 2004
WI 33, ¶33, 270 Wis. 2d 62, 676 N.W.2d 475. This was the basis for denying
Kosch’s motion for mistrial, and this court cannot conclude that decision was an
erroneous exercise of discretion or that it resulted in prejudice to the defendant.
See Camacho, 176 Wis. 2d at 886. The City’s evidence of guilt independent of its
statements in closing argument include Kosch’s slurred speech, admission of
drinking, poor performance on SFSTs, refusal to submit to a breath test for
alcohol, and Ludlum’s opinion that Kosch was impaired. See State v. Spring, 48
Wis. 2d 333, 339-40, 179 N.W.2d 841 (1970) (finding no prejudice where
improper remarks to jury were clearly outweighed by strength of the State’s
evidence). Accordingly, this issue, too, lacks merit on appeal.

IV. Reasonableness of Refusal to Submit to Test for Intoxicants

¶35 Finally, Kosch argues that the trial court erred in concluding that his
refusal to provide a sample for a preliminary breath test was unreasonable, the
consequence of which was revocation of his driver’s license, among other things.
“Application of the implied consent statute to an undisputed set of facts is a

20
No. 2022AP800

question of law” as are “considerations of due process and equal protection with
the requirements of the implied consent statute,” all of which we review
independently. State v. Baratka, 2002 WI App 288, ¶7, 258 Wis. 2d 342, 654
N.W.2d 875. “To the extent the [trial] court’s decision involves findings of
evidentiary or historical facts, those findings will not be overturned unless they are
clearly erroneous.” Id.

¶36 This court has already discussed and rejected Kosch’s assertion that
Ludlum’s request for a preliminary breath test was unlawful, which resolves his
argument about his refusal on the same reasonable suspicion/probable cause
grounds in the City’s favor. See State v. Anagnos, 2012 WI 64, ¶4, 341 Wis. 2d
576, 815 N.W.2d 675 (holding that an unlawful traffic stop or arrest without
probable cause is a defense to revocation under implied consent statute). This
leaves only his argument that his statement that he would not consent to the test
“without a lawyer” did not constitute a legal refusal because, under Baratka,
“[r]epeated requests for an attorney can amount to a refusal as long as the officer
informs the driver that there is no right to an attorney at that point,” and Ludlum
did not inform Kosch that he did not have a right to a lawyer. See Baratka, 258
Wis. 2d 342, ¶15.

¶37 The trial court found, as a matter of historical fact, that Kosch’s
response to Ludlum’s request for a breath test, reflected in the transcript (in the
form of a question from Kosch’s counsel to Ludlum) as “no, no, not without a
lawyer,” was actually “a no, period. And then another sentence where [Kosch]
talks about his request for an attorney.” The trial court had the benefit of viewing
the video of the interaction and observing the questioning of Ludlum (and her
response) in real time. This court cannot conclude that the trial court’s finding is
clearly erroneous; so affirmance is warranted on that basis alone.

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No. 2022AP800

¶38 Moreover, the officer in Baratka did advise the defendant in that
case (correctly) that he had no right to an attorney when he was asked to submit to
alcohol testing. 258 Wis. 2d 342, ¶15. Thus, the legal implication of a refusal
based on a defendant’s request for an attorney without such advisement was not
before the trial court. By contrast, in State v. Reitter, 227 Wis. 2d 213, 218, 595
N.W.2d 646 (1999), our supreme court addressed whether an officer is required to
advise a defendant about the lack of a right to counsel in the administration of a
test under Wisconsin’s implied consent law and held that “no due process
violation occurs when an officer does not inform a defendant that the right to
counsel does not attach to the stages preceding administration of a chemical test.”
Id. The supreme court further stated that “where a defendant exhibits no
confusion, the officer is under no affirmative duty to advise the defendant that the
right to counsel does not attach to the implied consent statute.” Id. at 231. Thus,
this court rejects Kosch’s remaining arguments under Baratka.

CONCLUSION

¶39 In summary, this court concludes that the officer’s initial stop,
request for a preliminary breath test, and arrest of Kosch did not violate the Fourth
Amendment’s prohibition on unreasonable searches and seizures; that, based upon
controlling precedent, Wisconsin’s implied consent statute is constitutional; that
Kosch was not entitled to a mistrial due to the City’s closing arguments; and that
Kosch unreasonably refused to furnish a sample for alcohol testing. Accordingly,
Kosch’s convictions are affirmed.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

22