COURT OF APPEALS

DECISION

DATED AND FILED

March 17, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1848 Cir. Ct. No. 2019CV424

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

CITY OF CEDARBURG,

 PLAINTIFF-RESPONDENT,

 V.

KATHERINE D. YOUNG,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Ozaukee County: 

SANDY A. WILLIAMS, Judge. Affirmed. 

¶1 DAVIS, J.1 Katherine D. Young appeals from an order finding her 

guilty of operating while intoxicated (OWI), first offense. The questions on 

appeal are: (1) whether a person may be convicted of OWI where law 

enforcement did not investigate or cite that individual at the time of the offense

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2017-18). 

All references to the Wisconsin Statutes are to the 2017-18 version.
No. 2020AP1848

2

and did not testify or provide evidence at trial; and (2) if a person may be 

convicted under these circumstances generally, whether the evidence supports

Young’s conviction. We hold that, by the plain terms of the statute, an OWI 

conviction does not require the introduction at trial of evidence obtained by law 

enforcement incident to citation or arrest (for example, chemical test results or

police officer testimony). Second, we hold that the City of Cedarburg met its 

burden to show, by clear and convincing evidence, that Young was driving under 

the influence. Accordingly, we affirm.

Background

¶2 Mid-morning on December 12, 2018, Young entered Cedarburg 

High School, where she worked as a teacher. In short succession, Young had 

several interactions with school staff. These witnesses later described Young as 

smelling of alcohol and unable to walk straight or talk coherently. At the time, 

each witness believed that Young was acting strangely or was likely intoxicated. 

The principal brought Young into his office, called her family, and escorted her 

off the premises. The evidence, which we will discuss below, suggests that Young 

drove to the school but walked home. Law enforcement did not immediately 

observe, investigate, or cite Young. Police began investigating the incident about 

a week later; five weeks after that, Young received a citation in the mail for OWI.2

¶3 Young was found not guilty in municipal court. The City requested

a de novo trial pursuant to WIS. STAT. § 800.14(4). Young moved to dismiss, 

arguing that the City could not prove the elements of the offense absent law 

 

2

 Young was cited for violating the local ordinance adopting WIS. STAT. § 346.63(1)(a), 

prohibiting operating while under the influence of an intoxicant or other drug.
No. 2020AP1848

3

enforcement’s “personal observations, chemical tests of blood or breath, [or] 

observing Young operate a motor vehicle.” The trial court disagreed and denied 

the motion, and the case proceeded to a bench trial. The City presented five 

witnesses, all school employees; Young presented no witnesses and did not testify. 

The court found Young guilty of OWI. This appeal followed. 

Discussion

¶4 As relevant here, conviction for OWI as a civil offense requires 

proof, by “clear, satisfactory and convincing” evidence, WIS. STAT. §§ 345.45, 

800.08(3), that the defendant “dr[o]ve or operate[d] a motor vehicle while ... 

[u]nder the influence of an intoxicant,” WIS. STAT. § 346.63(1)(a). See also WIS 

JI—CRIMINAL 2663A (“Operating a Motor Vehicle While Under the Influence of 

an Intoxicant—Civil Forfeiture”). Although these cases typically originate with a 

traffic stop, the statute by its plain terms does not require proof of any factual 

element that can normally only be obtained incident to citation or arrest. This is in 

contrast to conviction for operating with a prohibited alcohol concentration, 

wherein the prosecution must show that blood or breath alcohol concentration was 

above some numerical value. See WIS. STAT. §§ 340.01(1v), (46m); 346.63(1)(b); 

see also, e.g., WIS JI—CRIMINAL 2660A (“Operating a Motor Vehicle With a 

Prohibited Alcohol Concentration—Civil Forfeiture—0.08 grams or more”).

¶5 On appeal, Young argues that, as a matter of law, law enforcement 

testimony, chemical test results, or like evidence is necessary to prove that an

individual was driving while intoxicated. But Young has not cited, and we are 

unaware of, any case law to this effect—nor would such requirement seem logical 

or necessary under the statutory scheme. Certainly, in the typical case, the 

prosecution will rely on evidence from law enforcement to establish the elements 
No. 2020AP1848

4

of OWI, but the law does not preclude establishing these elements solely from lay 

witness testimony. As the City correctly notes, any argument that such testimony 

is less probative or reliable goes to the weight of that evidence, not its 

admissibility. Accordingly, the question is not whether a defendant in Young’s 

position can be convicted of OWI as a matter of law, but whether clear and 

convincing evidence supported this OWI conviction. 

¶6 Our review is deferential. We will not set aside the trial court’s 

factual findings unless clearly erroneous, and we give due regard to the 

opportunity of the court to judge witness credibility. WIS. STAT. § 805.17(2). In

reviewing the sufficiency of the evidence, we will not overturn the verdict unless 

the evidence, viewed most favorably to the verdict, is so lacking in probative value 

and force that no reasonable trier of fact could have found guilt to the requisite 

degree. State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).

¶7 The first element of the OWI offense is that the defendant was 

driving a vehicle. At trial, the City played video surveillance footage from various 

vantage points inside and outside Cedarburg High School. The video is not 

continuous, but the following clips are clear, and there is no dispute that the person 

in the video is Young. At 9:47-9:48 a.m., Young walked out of the school 

building, walked through the parking lot, opened and entered a red SUV, and 

drove away. At 11:31 a.m., a red SUV pulled into the parking lot and parked in 

that same parking space. At 11:34 a.m., Young walked into the school entryway. 

At 1:17 p.m., Young walked out of the school building and through the parking 

lot. At 1:19 p.m., Young walked up to the red SUV but did not drive away. 

Testimony from Associate Principal Carolyn McNerney established that Young 

was assigned the parking space in which the red SUV was parked. 
No. 2020AP1848

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¶8 On appeal, Young argues that this evidence was insufficient to 

establish that she was driving because there was no footage close to 11:31 a.m. of 

her actually exiting the SUV, or in which she is visible driving the SUV. But there 

is no requirement that direct, as opposed to circumstantial, evidence prove this 

element of the offense. See State v. Mertes, 2008 WI App 179, ¶¶10-17, 315 

Wis. 2d 756, 762 N.W.2d 813 (the conclusion that a defendant under the influence 

was “operating” a vehicle may rest solely on circumstantial evidence; thus, “[t]he 

issue is not whether Mertes was operating the vehicle at the moment the police 

approached him, but rather whether there was enough circumstantial evidence to 

prove that he drove the car”). And although not required to do so, Young offered

no evidence rebutting or undermining the import of the City’s evidence (she did 

not show, for example, that she got a ride back to school or had a different parking 

space). In such case, the trial court reasonably declined to speculate as to how 

Young may have arrived at, but without driving to, the school at the same time 

that a vehicle similar or identical3to hers drove into her assigned parking space. It 

was not clearly erroneous for the court to draw the logical conclusion from the

footage, when combined with McNerney’s testimony: that Young drove her red 

SUV to the school and parked in her usual spot.

¶9 The second element of the offense is that Young was under the 

influence of an intoxicant while driving. Five witnesses testified at trial, all of 

whom knew Young; surveillance footage established the timing of some of these

exchanges. At 11:34 a.m. on the day in question, Jennifer Batiansila, a “student 

 

3

 From our review of the video footage, the red SUV that Young enters and drives away 

in at 9:48 a.m. appears identical to the red SUV driven into the lot and parked in Young’s spot at 

11:31 a.m. The license plates are not visible, however, to conclusively establish that these are the 

same vehicles. At the very least, these are similar-looking vehicles. 
No. 2020AP1848

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supervisor” in charge of school security, was sitting at a desk in front of an

entrance when Young arrived. Batiansila observed Young try to grab the door 

handle and miss: “[I]t seemed like she struggled to reach the handle.” As Young 

entered, Batiansila “made a welcome back comment like I usually do and [Young] 

stated something back that wasn’t coherent. I couldn’t quite understand what she 

was saying. It sounded more like a mumble.” Batiansila “caught a whiff of an 

alcoholic smell.” 

¶10 Concerned, Batiansila “brought up the cameras ... to, kind of, follow 

her down the hall” and saw Young “swaying a little bit left and right” in a manner 

distinct from her usual “direct” or “quick, straight walk[].” Batiansila watched 

Young through the camera as Young “met someone at the end of the hall and 

leaned up against the wall.” Batiansila observed, “[I]t seemed to me like [Young]

was having a hard time standing on her own.” Batiansila saw Associate Principal

Trent Burg and shared with him her concern that Young “was some level of 

drunk.” 

¶11 Robin Vandinter, an administrative assistant, stopped Young in the 

hallway around 11:35 a.m. to discuss a student matter. Young “was slurring her 

speech quite a bit and had to brace herself against the doorway as she was talking 

to me.” Vandinter “felt that there was something wrong with Ms. Young, that she 

needed some attention” and went to notify Adam Kurth, the principal. A short 

time later, Vandinter was sitting at a desk outside Kurth’s office while Kurth and 

Young were inside the office. Vandinter “could smell alcohol when the office 

door opened at one point”; the smell was “[s]trong enough for me to smell it at my 

desk which was probably about 15 feet away.” 
No. 2020AP1848

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¶12 Kurth testified that he went to find Young after Vandinter alerted 

him of Young’s behavior. He observed Young “staggering down the hallway,” 

“not able to keep a straight line.” Kurth went into Young’s classroom to wait for 

her. Moments later, when Young walked through the door, Kurth noticed “a very 

distinct odor of alcohol,” that Young “continued to stagger,” and that she had “a 

delayed reaction to me being in the classroom.” Young “staggered again over to 

her desk” and sat down. Kurth tried talking to Young, but Young “couldn’t 

maintain eye contact, was very slouched in her chair, and her demeanor really 

verified that she was under the influence at the time.” When asked, Young denied 

being drunk, but her speech was “[s]lurred, delayed.” Kurth asked Young to come 

to his office; she refused at first but eventually complied. This interaction lasted 

about five minutes, from 11:36 a.m. to 11:41 a.m.

¶13 Once they were in Kurth’s office, Kurth repeatedly asked Young if 

she was intoxicated, but she denied being so. Young was “defensive” and “a little 

bit aggressive.” Kurth asked Associate Principals McNerney and Berg to wait 

with Young while Kurth stepped out of the office. Kurth was away for about 

fifteen minutes; when he walked back into his office, “the smell of alcohol was 

extremely apparent,” and Young “was sitting in a very slouched manner.” Young 

admitted to drinking the night before but not that day. She wrote out a statement 

of her movements on that day; the handwriting was “[s]loppy” and “not reflective 

of her typical handwriting.” Young “continued to ask why she was there.” 

¶14 School officials called Young’s mother to pick her up; when Young 

learned that they had done so, she “responded very inappropriately” and began 

using profanity. From Kurth’s observation, Young’s affect remained “not 

something that would be typical of a staff member”: her speech was slurred, her 

skin “discolored,” her odor “very apparent,” and her posture “very slouched.” 
No. 2020AP1848

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Young’s mother arrived and school authorities escorted Young outside, but Young 

was “very upset,” walked away, would not leave with her mother, and tried to hide 

behind some trees. After her mother left, Young tried to open her SUV door but 

could not (her keys had been confiscated) and eventually left on foot.

¶15 Associate Principal McNerney testified that she was present with 

Young in Kurth’s office. When McNerney walked into the office, she “could 

immediately smell alcohol in the room.” McNerney noticed that Young’s speech 

was slurred and her face flushed. Young “kept asking what was going on” and “if 

she could get back to her class”; McNerney repeatedly responded “that we were 

concerned ... and that [Young] needed to stay with us and that her students were 

fine.” This conversation repeated for about ten or fifteen minutes, with Young 

“ask[ing] the same questions ... three to five times maybe” about why she was 

there. At one point, Young tried to “push [McNerney] out of the way” so that she 

could leave, but then she sat back down. 

¶16 When McNerney told Young that she thought Young was drunk, 

Young denied being so and explained that she might smell like alcohol because 

she drank the night before. McNerney was “concerned” by this explanation 

because “there was no reason [that Young] should still have what appeared to be 

an intoxicated reaction to the alcohol she had the night before.” Upon learning 

that her mother would be coming to the school, Young “was very angry,” “swore,” 

and “dropped the ‘F’ bomb.” Based on Young’s presentation and behavior, 

McNerney was “certain” that Young was intoxicated. 

¶17 Associate Principal Berg testified that he first encountered Young in 

Kurth’s office. Berg stated, “You could smell alcohol and [Young] just had some 

different behaviors.... Her speech was slurred and ... several times she’d ask[] if 
No. 2020AP1848

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it was okay if she left, and we said we wanted her to stay.” The smell of alcohol 

“was strong enough that I could smell it from ... a few feet away.” Young 

“seemed just very uncomfortable with being in the office interacting with us. She 

was saying, you know, I didn’t do anything, why can’t I leave.... [H]er speech 

was slurred ... just some unusual behavior that you wouldn’t normally see.” As 

Young described her day, she seemed “a little bit off” and “not clear on every 

single detail of what was going on with her day.” Berg was “pretty sure” that the 

smell of alcohol was coming from Young’s person and not her coat. 

¶18 Young did not testify or present witnesses. Thus, the trial court 

heard five compatible, unrebutted, and unbiased4accounts of Young’s physical 

appearance and behavior, all consistent with her being inebriated, based on 

interactions beginning within minutes of her driving to the school. The trial court 

had no reason to doubt these observations or any related conclusions that Young 

was intoxicated. See State v. Burkman, 96 Wis. 2d 630, 645, 292 N.W.2d 641 

(1980) (“[A] lay witness, who has had the opportunity to observe the facts upon 

which he bases his opinion, may give his opinion as to whether a person at a 

particular time was or was not intoxicated.”). Nor, given this testimony, did the 

court err in drawing its own conclusion that Young was intoxicated. If not 

conclusive, the combined descriptions of Young were, at the very least, consistent 

with her being under the influence: Young had a staggered walk, delayed 

reactions, slurred speech, slouched posture, and flushed face; smelled strongly of 

alcohol; could not maintain eye contact; could not write in her normal 

handwriting; was by turns confused and aggressive; and generally behaved in an 

 

4

 No evidence of bias was presented or elicited on cross-examination.
No. 2020AP1848

10

unusual and unprofessional manner. At trial, Young argued that perhaps she 

smelled of alcohol from the night before, or perhaps there was some medical 

explanation for her condition, but the court heard no evidence to this effect. Thus, 

the court was not clearly erroneous in reaching the most likely explanation for 

Young’s looking and acting drunk, which was that she was drunk.

¶19 Young argues that, even assuming she drove to the school, and even 

assuming she was intoxicated upon entering the school, the evidence cannot 

establish that she drove while intoxicated. Young posits that she could have drunk 

enough alcohol between 11:31 a.m. and 11:34 a.m. to reach the level of 

intoxication observed by the testifying witnesses. The trial court implicitly 

rejected this argument, and we find that it did not err in doing so. Three of the 

City’s witnesses saw Young within roughly five minutes of her parking her car, 

and Batiansila saw Young at about 11:34 a.m., within three minutes of parking. 

These witnesses described a degree of intoxication inconsistent with Young’s 

having had her first drink three to five minutes prior.

5

 The trial court was not 

clearly erroneous in concluding that Young was already intoxicated when she 

drove to the school.

¶20 Finally, Young argues that, if we “[a]ffirm[] the process” wherein 

she was found guilty, it would set a “dangerous precedent.” In Young’s view, it is 

fundamentally unfair that a person could be cited and convicted for OWI based 

 

5

 In arguing otherwise, Young points to the fact that, she says, she got a blood draw 

earlier that day. We will assume that Young did get a blood draw, but without evidence on this 

point, such as testimony from her physician, we cannot infer that some physical condition caused 

her to become severely inebriated in an unusually short timeframe. The trial court was not clearly 

erroneous in concluding that Young was already drunk before she parked her car.
No. 2020AP1848

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solely on lay witness testimony and circumstantial evidence.6 We see no merit in 

such broad assertions. Regardless of whether law enforcement testifies, or 

whether the evidence is direct or circumstantial, the prosecution must prove the 

same elements of the OWI offense to the requisite degree of guilt. That there are 

not more cases similar to Young’s speaks only to the difficulty—in most 

situations—in convicting a defendant without chemical test results or police 

officer testimony. Whether cases should be brought generally in the absence of 

such evidence is a matter of prosecutorial discretion on which we make no 

comment. We hold only that here, the video footage of Young’s SUV and the 

consistent and unrebutted lay witness testimony was sufficient evidence 

supporting the OWI conviction.

7

 

6

 Young further implies that some error lies with the length of time between offense and 

citation (forty-three days) and with the fact that the citation was mailed to her. As she cites to no 

law and does not develop these arguments, we will not address them. See State v. Pettit, 171 

Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). 

7

 We reject Young’s argument that her Sixth Amendment right to confrontation was 

violated when the citing police officer did not testify and that we should accordingly reverse 

under the plain error doctrine. See State v. Jorgensen, 2008 WI 60, ¶¶21-23, 34, 310 Wis. 2d 

138, 754 N.W.2d 77. The Sixth Amendment applies only to criminal prosecutions. See id., ¶34 

& n.10-11; see also Town of Geneva v. Tills, 129 Wis. 2d 167, 176-77, 384 N.W.2d 701 (1986) 

(right to confrontation inapplicable to civil forfeiture action for operating under the 

influence/illegal blood alcohol concentration). More fundamentally, the City’s case was not 

based on any out-of-court statement that might raise Sixth Amendment concerns. The citation 

was a pleading that was not and could not be admitted into evidence, and no other statement by 

the citing police officer was admitted into evidence. See State v. Mattox, 2017 WI 9, ¶24, 373 

Wis. 2d 122, 890 N.W.2d 256 (“[A] defendant’s right to confrontation is violated if the trial court 

receives into evidence out-of-court statements by someone who does not testify at the trial if 

those statements are ‘testimonial’ and the defendant has not had ‘a prior opportunity’ to crossexamine the out-of-court declarant.”) (emphasis added; citation omitted); see also City of 

Cedarburg v. Hansen, 2020 WI 11, ¶27, 390 Wis. 2d 109, 938 N.W.2d 463 (“[T]he proceeding 

was commenced by Hansen’s civil traffic citations, which are the pleadings that alleged that the 

OWI ... violation[] arose under an ordinance.”) (emphasis added). Because no Sixth Amendment 

right was implicated in this case, we have no reason to reach the plain error issue raised by 

Young. 
No. 2020AP1848

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)4.