Fond du Lac County v. Andrew Joseph Ludwig

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.
August 20, 2025
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. 2025AP183 Cir. Ct. No. 2023TR6363

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

FOND DU LAC COUNTY,

PLAINTIFF-RESPONDENT,

V.

ANDREW JOSEPH LUDWIG,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: DOUGLAS R. EDELSTEIN, Judge. Affirmed.

¶1 GUNDRUM, J.1 Andrew Joseph Ludwig appeals from a judgment
of conviction for operating a motor vehicle while under the influence of an

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(c) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2025AP183

intoxicant (OWI). Ludwig challenges the circuit court order denying his motion to
suppress evidence, asserting that the sheriff deputies “unconstitutionally detain[ed
him]” by failing to conduct the OWI investigation in a sufficiently diligent
manner.2 For the following reasons, we disagree with Ludwig and affirm.

Background

¶2 Ludwig was arrested on December 3, 2023, following a traffic stop
that ultimately resulted in him receiving a citation for first-offense OWI.3 He
brought a motion to suppress evidence flowing from the stop. The circuit court
held an evidentiary hearing on his motion, and the following relevant evidence
was produced at that hearing.

¶3 At 2:03 a.m. on December 3, 2023, a sheriff’s deputy performed a
traffic stop on Ludwig after he committed a traffic violation. It was sleeting at the
time, and the roads were in an unsafe condition. Approaching the vehicle and
engaging with Ludwig, the deputy soon suspected Ludwig of OWI based on his
slurred speech and glassy eyes, a “very strong odor of intoxicants coming from the

2
In his brief-in-chief, Ludwig asserts the deputies violated his constitutional rights by
not only detaining him for an unreasonable length of time but also by “moving [him] from the
scene to the secured access location at the [s]heriff’s [d]epartment.” He states that “moving [him]
to the secured area of the [department] garage combined with the thirty-one-minute delay violated
Mr. Ludwig’s constitutional rights under the Fourth Amendment.” (Emphasis added.) In its
response brief, the State lays out a string of Wisconsin cases holding that it is reasonable, and
thus constitutional, in harsh weather conditions to transport a person suspected of OWI several
miles to a law enforcement facility for field sobriety testing. In his reply, Ludwig abandons his
“moving [him] from the scene to the secured access location” challenge and instead focuses only
on the length of time he was detained for the OWI investigation. As a result, we address only the
latter.
3
Ludwig received three other citations as a result of the traffic stop. After the circuit
court found Ludwig guilty of OWI, counsel for Fond du Lac County moved to dismiss the other
citations, which motion the court granted.

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vehicle,” and an open beer bottle in the vehicle. Within two minutes of stopping
the vehicle, the deputy called for another unit to respond to the scene, a “standard
practice” when investigating a possible OWI.

¶4 Approximately three minutes into the traffic stop, the deputy
returned to his squad car and also called “a field training officer along with a field
trainee … to come to the scene to further the investigation,” and so the trainee
could continue the investigation for training purposes. The original backup squad
the deputy had called for had not yet arrived on the scene, and the deputy did not
know if it was already en route. In response to questioning by the circuit court, the
deputy indicated that although it is not a “requirement” to have a backup deputy at
the scene during the performance of field sobriety tests (FSTs), it is “standard
practice” when feasible, for safety purposes. The deputy confirmed that he would
have called for backup (as he had already done) “[w]hether or not there was a
trainee on this shift.”

¶5 Approximately ten minutes after the deputy (hereinafter “first
deputy”) returned to his squad, a second squad, the unit with the trainee deputy
(hereinafter “second deputy”), arrived on the scene. The first deputy had already
briefed the second deputy while he was en route to the scene, intending to have the
second deputy continue the OWI investigation upon arrival. The second deputy
did so, placing Ludwig into the back of his squad car for transport to the sheriff’s
department, where FSTs could be performed inside.

¶6 The second deputy testified next. He agreed that before arriving on
the scene around 2:16 a.m., the first deputy had informed him via phone of the
reasons he had stopped Ludwig’s vehicle, and he understood it was an OWI
investigation. At Ludwig’s vehicle, the second deputy observed that Ludwig had

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“bloodshot and glassy eyes, as well as slurred speech,” and there was “the odor of
intoxicants coming from the vehicle.” Ludwig told the deputy that he had
consumed six cans of beer that night and had stopped “right before the traffic
stop.”

¶7 The second deputy explained that it had been snowing for several
hours, there was “a pretty heavy sleet, rain, snow mixture” coming down, it was
cold, the roads were “slick” and “slippery,” and snow and sleet were accumulating
on his clothes and hands. Due to the weather conditions, the second deputy
determined it would be better to have Ludwig perform FSTs at an alternative
location because “[w]e always want to give [a driver] the best opportunity possible
to perform [the] tests to prove that they aren’t impaired, and I felt that due to the
weather conditions, that we weren’t giving Mr. Ludwig … a fair chance to prove
that.” The deputy planned to use the basement of the sheriff’s department, which
was “approximately two to three miles” away, for the tests because that was the
“standard” alternative location for that area, adding, “that’s what other deputies
have done in the past as well.”

¶8 The second deputy testified that rather than perform the FSTs in the
snow, Ludwig, who was wearing a sweatshirt and had no coat, hat or gloves with
him, agreed to perform them at the sheriff’s department. The deputy noted that
Ludwig had suggested doing them at his own residence, but the deputy did not
agree to that location. After searching Ludwig, the second deputy placed him into
the rear of the squad and transported him to the sheriff’s department, where he
performed the FSTs.

¶9 The circuit court denied Ludwig’s suppression motion. Based on the
testimony, the court found that “it may not be a requirement, but its consistent

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with [the first deputy’s] training, that a backup [deputy] be called regardless of
trainee status or otherwise” and that Ludwig “agreed to do the field sobriety test
out of the weather.” The court recognized that

it appears to be as courtesy as well as practicality to get out
of the weather. It would impact law enforcement’s ability
to provide reasonable observations. … [T]hese are all
practical considerations that the weather could be having an
adverse affect upon the duty of law enforcement to
investigate this further. And in that aspect of
reasonableness[,] I think it’s reasonable and should be
encouraged to provide somebody an opportunity to do the
best they can.

¶10 The circuit court further found that the squad video “suggest[ed] that
they went from the traffic stop directly to the [sheriff’s department].” The court
determined that because of the “rough weather,” “one would be perhaps running
below the speed limit” and the drive to the sheriff’s department from the scene
would take longer. The court concluded that “[l]aw enforcement was engaged in
the sole function of assessing the merits of FSTs. They did not distract from that
purpose, there was no unnecessary delay that would prolong this traffic stop.”

¶11 Ludwig appeals.

Discussion

¶12 “When we review a circuit court’s ruling on a motion to suppress
evidence, we apply the clearly erroneous standard to the circuit court’s findings of
fact. However, we review the circuit court’s application of constitutional
principles to the findings of fact de novo.” State v. Smiter, 2011 WI App 15, ¶9,
331 Wis. 2d 431, 793 N.W.2d 920 (2010) (citation omitted).

¶13 Ludwig contends “the continued detention for thirty-one minutes”
for field sobriety testing, which included an approximate ten-minute wait for the

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No. 2025AP183

second deputy (the trainee), violated his Fourth Amendment rights. He complains
that after the first deputy stopped him,

[r]ather than continuing his investigation, he made the
decision to call another deputy, … a deputy trainee, to
complete the OWI investigation. For several minutes, [the
first deputy] did nothing to further his OWI investigation,
he simply waited for [the second deputy] to arrive. It took
13 minutes from the time of the initial stop for [the second
deputy] to arrive on the scene. Once on [the] scene, [the
second deputy] made the decision to transport Mr. Ludwig
to the Fond du Lac County [Sheriff’s Department], arriving
thirty-one minutes after the initial stop.

The detention was unconstitutionally extended when the
[first deputy] stopped his investigation and simply waited
for a training officer to arrive and then resumed the
investigation after transporting Mr. Ludwig to the
[department] garage thirty-one minutes after the initial stop.

¶14 “[T]he ultimate touchstone of the Fourth Amendment is
reasonableness, … and reasonableness … is measured in objective terms by
examining the totality of the circumstances.” State v. Weber, 2016 WI 96, ¶¶18,
34, 372 Wis. 2d 202, 887 N.W.2d 554 (citation omitted). The record shows that
the investigation, and thus the seizure time, was not unreasonably delayed by how
the deputies conducted the investigation.

¶15 The first deputy’s decision to call for backup was entirely consistent
with the “standard practice” of his department. Ludwig develops no legal
challenge to this practice. Ludwig, without actually developing an argument on
this point, appears to intimate that something was particularly amiss because the
first deputy specifically wanted the trainee, the second deputy, to gain experience
by conducting this OWI investigation.

¶16 Notably, nothing in the record suggests that Ludwig’s detention was
unreasonably extended as a result of waiting for the second/trainee deputy to

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arrive. Indeed, it appears that had the first deputy waited for the initial backup he
called for to arrive on the scene, his detention may have been more prolonged.
While the first deputy had already called for backup, per department practice, the
subsequently called second deputy arrived before that originally called for backup
arrived on the scene. Regardless, this was all part of performing a proper OWI
investigation—doing so, for safety reasons, with a backup deputy present. Ludwig
does not develop an argument that a ten-minute wait for a backup deputy to arrive,
for safety purposes, is unreasonable and thus unconstitutional. And, there is no
indication in the record that the investigation would have been completed earlier if
the first deputy, rather than the second, had continued the investigation after the
second deputy’s arrival.

¶17 As we have stated,

[i]n assessing a detention for purposes of determining
whether it was too long in duration, a court must consider
“whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their
suspicions quickly, during which time it is necessary to
detain” the suspect. In making this assessment, courts
“should not indulge in unrealistic second-guessing.” In
assessing a detention’s validity, courts must consider the
“totality of the circumstances—the whole picture.”

State v. Wilkens, 159 Wis. 2d 618, 626, 465 N.W.2d 206 (Ct. App. 1990)
(citations omitted). Here, “the whole picture” included the department’s
unchallenged practice of having a backup deputy on the scene for OWI
investigations, for safety reasons, when feasible, the bad weather conditions the
circuit court recognized would have increased the driving time to the sheriff’s
department, the importance of conducting FSTs in a location with more favorable
conditions for Ludwig, and the fact that Ludwig consented to doing the tests at the

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No. 2025AP183

sheriff’s department instead of on the road in the then-current weather conditions.4
Because we conclude the deputies acted reasonably in light of the totality of the
circumstances, we affirm.

By the Court.—Judgment affirmed.

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

4
Ludwig asserts that “[w]hile he eventually agreed to travel to the [s]heriff’s
[d]epartment, he really was left with no other choice. The deputies made it clear he could not go
home, and because of the configuration of the squad he could not simply exit and walk away.”
Ludwig omits the fact that the second deputy undisputedly testified that he informed Ludwig
before he entered the squad car that he could perform the FSTs on the roadway in the current
weather conditions, but Ludwig agreed to do them at the sheriff’s department instead.

8