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COURT OF APPEALS
NOTICE
DECISION
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.
December 22, 1999
                                                                                                                                                       A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                       petition  to  review  an  adverse  decision  by  the
                                                                                    Marilyn L. Graves
                                                                                                                                                       Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                    Clerk, Court of Appeals
                                                                                                                                                       STATS.
                                                                                    of Wisconsin
No.                                                                                 99-0672
STATE OF WISCONSIN                                                                  IN COURT OF APPEALS
                                                                                    DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
KELLY J. KLOSS,
DEFENDANT-APPELLANT.
APPEAL from an order of the circuit court for Sheboygan County:
L. EDWARD STENGEL, Judge.   Affirmed.
¶1                                                                                  NETTESHEIM, J.     Kelly J. Kloss appeals from an order revoking
his driving privileges pursuant to the Implied Consent Law, § 343.305(10), STATS.
The order followed a hearing at which the trial court determined that Kloss had




No. 99-0672
improperly refused to submit to a chemical test following his arrest for operating a
motor vehicle while intoxicated.1
¶2                                                                                                   On appeal, Kloss argues that the information provided to him by the
arresting officer via the Informing the Accused form understated the consequences
of a refusal because the information did not advise that the police would take a
blood sample even if Kloss refused the test.   Kloss argues that this failure resulted
in a violation of his due process rights.
¶3                                                                                                   We decline to address Kloss’s argument on the merits because it is
not the argument that he made in the trial court.   We deem the issue waived and
we affirm the revocation order.
¶4                                                                                                   Kloss was arrested for operating a motor vehicle while intoxicated.
He was read the requisite implied consent information recited in  §  343.305(4),
STATS.   This information does not allude to the possibility that the police might
obtain a blood sample even if the suspect refuses to submit to a chemical test.
Kloss refused the test.   The police then issued him a notice of intent to revoke his
operating  privileges  pursuant  to                                                                  §  343.305(9)(a).    Despite  Kloss’s  refusal  to
1 The trial court ruled that Kloss’s refusal was unreasonable.   The reasonableness of a
defendant’s refusal to submit to a chemical test was once one of the issues to be litigated in a
refusal hearing. See, e.g., § 343.305(2)(b)5, STATS., 1975.   However, that is no longer the law.
Under current law, the issues at a refusal hearing are limited to:                                   (1) whether probable cause
existed to arrest the defendant, (2) whether the defendant was properly advised pursuant to §
343.305(4), and (3) whether the defendant refused the test.   See § 343.305(9)(a)5.   Thus, the
proper terminology is whether the defendant’s refusal was “proper.”   See § 343.305(10)(a).          (“If
the court determines under sub. (9)(d) that a person improperly refused to take a test … the court
shall proceed under this subsection.”) (emphasis added).
2




No. 99-0672
submit to a chemical test, the police transported him to a medical center where a
blood sample was obtained without his consent.2
¶5                                                                                          Kloss requested a refusal hearing.   Prior to the hearing, Kloss filed a
motion  seeking  dismissal  of  the  refusal  proceedings,  challenging  the  implied
consent law on constitutional due process grounds.   Specifically, Kloss’s motion
contended that information conveyed via the Informing the Accused form both
understated and overstated the penalties envisioned by the implied consent law.
¶6                                                                                          Kloss’s motion first set out the relevant facts, relating the fact of his
arrest, the information given to him via the Informing the Accused form, and his
refusal to submit to the test.   However, the motion did not refer to the fact that the
police had obtained a blood sample from Kloss without his consent following his
refusal.  Nor does the motion recite this fact as the basis for the motion.
¶7                                                                                          Kloss’s motion next stated his argument.   The motion contended that
the information conveyed via the Informing the Accused form both understated
and overstated the penalties envisioned by the implied consent law.   The motion
stated in relevant part:
First, subsection (4) states that if an individual refuses to
submit  to  a  chemical  test,  the  person  will  not  only  be
subject  to  license  revocation,  but                                                      “other  penalties”  will
befall the individual as well.    This assertion is patently
false  as  the  only                                                                        “penalty”  for  refusing  to  submit  to  a
chemical test is license revocation.   No demerit points, no
jail, and no fine are ever imposed for refusing a chemical
test.   All other sanctions which are imposed for refusing to
submit are remedial in nature, and are not “penalties.”   See
e.g., State v. Killebrew, 115 Wis.2d 243, 251, 340 N.W.2d
470 (1983).
2 The appellate record does not document this event.  However, the State does not dispute
it.
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No. 99-0672
Second, the foregoing incorrect assertions are made in the
context  of  the  accused  having  been  informed  by  the
immediately preceding sentence that a chemical test above
the  legal  limit  will  only  result  in  license                                    “suspension,”
whereas,  in  fact,  a  multitude  of  punishments,  including
potentially criminal sanctions will befall the defendant.
¶8                                                                                    The balance of Kloss’s motion recited relevant case law establishing
a defendant’s right to be fairly informed of the consequences of choices imposed
by law which affect a person’s driving privileges.   See generally South Dakota v.
Neville, 459 U.S. 553 (1983), and Bell v. Burson, 402 U.S. 535 (1971).   Relying
on this line of authority, Kloss’s motion argued that a “due process analysis is
inescapable when examining whether the state misleads accused drivers regarding
their decision to submit to chemical testing by emphasizing non-existent penalties
associated with refusing to submit and grossly understating penalties associated
with submitting to a chemical test.”   As with the factual portion of the motion,
nowhere does this legal portion allude to the blood sample obtained from Kloss
without his consent.
¶9                                                                                    Next, we turn to the refusal hearing.   The refusal hearing and the
hearing on Kloss’s motion were conducted in a single proceeding.   The arresting
officer testified regarding the circumstances surrounding Kloss’s refusal.   But he
was never asked any questions about the later blood sample obtained without
Kloss’s consent.   Thus, the evidentiary record is devoid of any reference to the
taking of Kloss’s blood sample.    Following the close of the evidence, Kloss’s
counsel made his argument in support of the motion to dismiss.   We set out the
relevant portions:
The challenge to the constitutionality of the statute is set
forth on page 2 of the motion.   The statutes provide certain
information that the officer is required to inform a person
of prior to requesting a chemical test, and, basically, the
information that the officer is required to give the driver
understates the penalties if the person takes the test and
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No. 99-0672
overstates the penalties if the person refuses.    There are
additional penalties that a person faces by taking the test
other than suspension of a driver’s license.   Yet, the statute
requires the officer to tell the person that, if the person
takes the test and tests over the limit, they’re going to face
a suspension of their license.   But if they refuse, they face
revocation of driver’s license and additional penalties.   It’s
actually, in reality, it’s actually flip-flopped….   You lose
your license and face other penalties if you take the test, but
if you refuse to take the test, you face revocation of your
driver’s license and no other penalties.
So the statute understates the penalties if I take the test,
overstates the penalties if you refuse to take the test.
¶10    Here again, there is no reference to the taking of  Kloss’s blood
sample as the basis for the motion.   Instead, the argument harkens back to Kloss’s
written motion which, as we have noted, makes no linkage or reference to the
taking of the blood sample.
¶11    The trial court rejected Kloss’s motion to dismiss, concluding that
the information conveyed to Kloss via the Informing the Accused form complied
with the demands of due process.    Understandably, the court’s ruling did not
reference the taking of Kloss’s blood sample.
¶12    On appeal, Kloss argues that he was “tricked” into refusing the test
because he was not forewarned that the police would obtain a sample of his blood
regardless of his refusal.   However, as our recounting of the history of this case
reveals,  Kloss  never  asserted  this  ground  as  the  basis  of  his  constitutional
challenge in his motion, in the evidence or in his argument.   In fact, as best we can
tell from the appellate record, the trial court did not even know of this event. We
deem Kloss’s appellate issue waived.   We do not address issues that are raised for
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No. 99-0672
the first time on appeal.3   See C.A.K. v. State, 154 Wis.2d 612, 624, 453 N.W.2d
897, 902 (1990).
By the Court.—Order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)4, STATS.
3 We appreciate that the State does not argue waiver.  However, when an issue is waived,
we are deprived of important information on the issue—the trial court’s reasoning.   Although we
owe no deference to the trial court’s ruling on a question of law, we nonetheless value the court’s
decision.   See Scheunemann v. City of West Bend, 179 Wis.2d 469, 475, 507 N.W.2d 163, 165
(Ct. App. 1993).   Moreover, although the issue in this case is of constitutional dimension, it is
also fact dependent.   When the record is devoid of relevant facts germane to the issue, waiver is
all the more appropriate.
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