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COA rejects multiple challenges to first-offense OWI and refusal convictions and affirms

City of Whitewater v. Douglas E. Kosch, 2022AP800, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)

Although Kosch throws the kitchen sink at his OWI and refusal convictions, COA methodically works through his myriad challenges on a path toward affirmance.

This OWI case begins with a 911 call from a motel reporting “a domestic incident between a male and a female.” (¶2). When police arrived, “a motel employee described the ‘suspect vehicle’ as a dark-colored SUV” and pointed out Kosch’s car. (Id). Although there were no traffic violations observed, the officer immediately seized the SUV based on this tip. (¶3). She noticed that Kosch had slurred speech and he admitted to drinking two beers. (Id.). Kosch agreed to perform field sobriety tests. (Id.). Although the officer would later testify that Kosch was impaired based on those tests, the officer was also subject to an intense cross-examination highlighting numerous alleged technical failures when administering them. (¶4). Kosch refused to take a preliminary breath test and was then arrested for a suspected OWI. (Id). The trial court denied Kosch’s numerous pretrial motions. Kosch was then convicted at a jury trial of the first-offense OWI and, at a hearing outside the presence of the jury, unlawfully refusing the PBT. On appeal he raises numerous issues:

1) Reasonable Suspicion

Kosch first argues that the seizure of his SUV was unlawful, as it was not supported by reasonable suspicion. (¶13). In a footnote, COA sets aside the municipality’s “community caretaker” argument and instead asks whether there was a sufficient basis for the officer to conclude that Kosch had committed “an offense.” (¶14). Although COA, like the circuit court, is concerned by “the sparseness of facts elicited at the suppression hearing,” it nevertheless concludes that the vague 911 call was sufficient to satisfy the “low bar” for reasonable suspicion. (¶16). Although it isn’t clear what specific crime Kosch had committed, COA bootstraps the vague 911 call’s reference to a “domestic incident” to the legal term of art “domestic abuse” found in § 968.075(2); it therefore concludes that “[s]uch an emergency call implies that the caller believed someone to be in danger of imminent bodily harm, which implicates the crime of battery.” (¶17). In a footnote, COA also suggests the officer “could” have believed that Kosch had “disturbed the peace or was involved in disorderly conduct.” (Id.). Coupled with Kosch leaving the scene and the motel employee pointing out the car, COA is satisfied that “[t]he 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.” (Id.).

In other words, we don’t know what the caller meant by a domestic incident, we don’t know what Kosch did, and we don’t know what law his (unknown) actions may have violated. “Reasonable” suspicion?

2) Probable Cause to Request PBT

Next, Kosch argues the evidence fails to meet the intermediate level of probable cause necessary to request a PBT discussed in County of Jefferson v. Renz, asserting that the circuit court should not have given any evidentiary weight to improperly conducted FSTs. (¶19). However, COA points to other evidence in the record–including Kosch’s slurred speech and admission of drinking–as facts supporting probable cause. (Id). Moreover, COA cites its prior decision in City of West Bend v. Wilkens for the proposition that FSTs are just “tools” and that an officer’s failure to properly administer them does not mean the totality of the officer’s observations go out the window. (¶19). The court, as the trier of fact, took Kosch’s cross-examination into account when weighing this evidence and otherwise made proper factual and credibility findings when accepting the officer’s professional opinion that Kosch was impaired. (¶22).

This latter issue is tricky. Whether probable cause exists is a legal requirement reviewed de novo. While the circuit court could obviously choose to accept superficially flawed evidence in determining whether a constitutional standard has been satisfied, it is difficult to understand why COA owes any deference to that decision. Why is it all reasonable to uphold an intrusive law enforcement action based on admittedly improper police work?

3) Probable Cause to Arrest

Here, Kosch largely reiterates his arguments about the FSTs, already rejected above. (¶23). He also argues that it was improper to use his refusal of the PBT to establish probable cause to arrest. (¶24). COA brushes aside that argument as undeveloped and affirms with citation to its prior decision in State v. Babbittholding that refusal to submit to FSTs can be used to establish probable cause, to uphold the trial court’s denial of Kosch’s suppression motion. (Id.).

4) Constitutionality of Implied Consent Statute 

Kosch then asks COA to dismiss the refusal, arguing that Wisconsin’s implied consent law is unconstitutional. (¶25). Despite a somewhat-lengthy discussion of this issue, COA ultimately concludes it cannot reach the merits of Kosch’s claim (while also skeptically describing the contours of his appellate argument) given that COA already upheld the implied consent law in State v. Levanduski. (¶29) Following Cook v. Cook, COA is unable to revisit its prior precedent and advises Kosch to instead take his claims to SCOW. (Id.).

5) Improper Closing Argument at Trial 

Moving away from his preserved pretrial motions, Kosch claims that the circuit court wrongly denied his request for mistrial based on an allegedly improper closing argument. (¶30). He points to argument by the prosecutor highlighting that “OWIs are a huge problem in our state and our country, causing injuries and deaths every single year” as well as the prosecutor’s request that the jury “complete the process” begun when police first seized Kosch by finding him guilty. (Id). (For the sake of space, we’ve omitted a block quote of the remarks, but they can be found on paragraph 8 of the decision.) COA concludes the remarks were probably not objectionable and, in any case, that the court properly cured any error by giving an extensive curative instruction. (¶34). COA believes the court’s decision not to order a mistrial was a proper exercise of discretion, given the overwhelming independent strength of the State’s evidence. (Id.).

COA’s analysis of this claim seems a little muddled. It states at one point that the court “sustained” an objection to the comments but it doesn’t seem like the court actually made a finding as to whether the comments were, in fact, problematic. Likewise, COA cites a 1970 harmless error case to uphold the court’s discretionary decision to deny the mistrial motion without otherwise citing or applying the more recent case law on mistrials (despite two recent decisions from SCOW clarifying those requirements). In any case, COA is probably correct that the existence of the court’s extensive curative instruction was probably sufficient to kill the issue.

6) Validity of Refusal Conviction

Finally (!), Kosch asserts that the court improperly convicted Kosch of the refusal. (¶34). Under the law, one defense to a refusal would be that the officer lacked probable cause. (¶36). However, COA has already considered and rejected those arguments. This leaves the argument that Kosch telling the officer he would not consent to a PBT “without a lawyer” was not a refusal, as Kosch argues that the officer had a duty in these circumstances to correct Kosch’s mistaken belief that he was entitled to a lawyer when confronted with a request for a PBT. (¶36). To get around Kosch’s legal argument, COA relies on the lower court’s factual findings, which concluded that Kosch first said “No, period” before making his request for an attorney. (¶37). COA also does not believe there is any obligation of the officer to advise the defendant he is not entitled to a lawyer when requesting a PBT. (¶38).

Setting aside the very precise factual distinction drawn by the trial court, the legal issue presented is probably more nuanced than Kosch is given credit for. Kosch’s cited authority, State v. Baratka, seems to clearly support his position: That while there is no right to an attorney (and no accompanying duty to advise a person that right does not exist when requesting a PBT), an officer may have a duty to dispel a misunderstanding about a right to an attorney before concluding that the person has, in fact, refused. In other words, a person operating under a mistaken belief they are invoking a nonexistent right isn’t really refusing. Baratka is published and binding authority; of all Kosch’s issues, this one might be the best candidate for a petition for review.

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