Vol. 73, No. 2, February 2000

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Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Criminal Law | Criminal Procedure |
| Motor Vehicle Law | Real Estate |

OWI - Preliminary Breath Test - Quantum of Evidence
Needed to Request PBT

Jefferson County v. Renz, No. 97-3512 (filed 22 Dec. 1999)

Section 343.303 of the Wisconsin Statutes provides that "if a law enforcement officer has probable cause to believe that the person is violating or has violated [the OWI law]," the officer may request the person to submit to a preliminary breath test (PBT). For commercial drivers, the officer may request a PBT upon the detection of "any presence" of an intoxicant or if the officer has "reason to believe" that the driver is operating a vehicle while intoxicated.

This case concerns noncommercial drivers and the amount of evidence the officer must have in order to request the driver to submit to a PBT. As indicated above, the statute uses "probable cause to believe" as the standard.

In a majority decision authored by Justice Wilcox, the supreme court concluded that "probable cause to believe" refers to a quantum of proof greater than the reasonable suspicion necessary to justify an investigative stop, and greater than the "reason to believe" that is necessary to request a PBT from a commercial driver, but less than the level of proof required to establish probable cause for arrest. This is consistent with the use of the PBT as an investigative device and with the legislative intent to allow an officer to request a PBT as a screening test before establishing probable cause for an OWI arrest.

Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley.

Property Tax Assessments - Inclusion of Management Income
from Nearby Properties

ABKA Limited Partnership v. Board of Review of the Village of Fontana-on-Geneva-Lake, No. 98-0851 (filed 23 Dec. 1999)

ABKA owns and manages the Abbey on Geneva Lake Resort. In 1996 the Abbey was assessed at $8.5 million. The assessor included ABKA's income from the management of rental condominiums located adjacent to the resort. ABKA challenged the inclusion of the management fees in the assessment of the resort property.

ABKA does not own the condominiums located near the resort. They are separately owned and assessed. Pursuant to annual rental agreements between ABKA and the condominium owners, however, ABKA receives 50 percent of the gross revenues from the rental of each unit. The owners retain the remaining 50 percent.

In return for its percentage of rental revenues, ABKA provides a myriad of services for the renters of the condominiums. Renters make reservations through the Abbey, where they also check in and check out. Rental prices for the condos are advertised in the Abbey's brochures and ABKA retains sole discretion to set rental rates. In addition, the condominium renters have access to the full amenities of the Abbey Resort, subject to the same additional charges as resort guests. The resort also provides advertising, individualized accounting, cleaning supplies and toiletries, and maid and switchboard services. This management arrangement has been in effect since 1978.

The Fontana Board of Review upheld the assessment as did the circuit court. The court of appeals affirmed the circuit court with respect to issues ultimately considered by the supreme court. The court of appeals held that the management income was "inextricably intertwined" with the resort property and thus was properly included in the assessment.

In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals. The court concluded that ABKA's management income is inextricably intertwined with the Abbey. The management fees are generated both by and on the land on which the Abbey is located, and the ability to earn the fees is transferable to future purchasers of the Abbey. As value that is inextricably intertwined with the Abbey, the management income appertains to the Abbey under Wis. Stat. section 70.03 and was properly included in the Abbey assessment.

Justice Wilcox filed a dissenting opinion that was joined by Justice Prosser.

Prof. Daniel D. Blinka and Prof. Thomas J. Hammer invite comments and questions about the digests. They can be reached at the Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.