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    Wisconsin Lawyer
    February 01, 2012

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1215 W. Michigan Ave., Milwaukee, WI 53233, (414) 288-7090.

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

    Wisconsin LawyerWisconsin Lawyer
    Vol. 85, No. 2, February 2012


    Motor Vehicle Law

    OWI – Evidence Required to Request Preliminary Breath Test from Driver Subject to 0.02 Standard

    State v. Goss, 2011 WI 104 (filed 23 Dec. 2011)

    A police officer stopped Goss for having a dirty license plate and a broken license plate lamp. After pulling him over, the officer discovered that Goss’s driver’s license was revoked and he had four prior operating while intoxicated (OWI) convictions. Because of this record, Goss was subject to the 0.02 prohibited alcohol concentration (PAC) standard. While arresting Goss for the offense of driving with a revoked license, the officer noticed the odor of alcohol and asked Goss to submit to a preliminary breath test (PBT). For noncommercial-vehicle drivers, a PBT may be requested only when there is probable cause to believe the driver is operating a vehicle in violation of one of the statutes related to driving while intoxicated. See Wis. Stat. § 343.303. The PBT result was 0.084 percent. Field sobriety tests and a blood test (with a result of 0.08 percent) were subsequently administered, and Goss was charged with fifth-offense OWI.

    Goss moved to suppress the PBT results; he argued that probable cause did not exist at the time the officer requested the test. The consequence of suppressing the test results would generally be the suppression of all subsequently obtained evidence (see ¶ 5 n.6). The circuit court denied the motion, and Goss was subsequently convicted of fifth-offense OWI. In an unpublished decision, the court of appeals affirmed.

    In a unanimous decision authored by Justice Crooks, the supreme court affirmed the court of appeals. The court saw this case as presenting a question it had not previously addressed: “whether probable cause exists to request a PBT breath sample when the driver is known to be subject to a .02 PAC standard, the officer knows it would take very little alcohol for the driver to exceed that limit, and the officer smells alcohol on the driver” (¶ 2).

    The court answered this question in the affirmative. The court said that the legislature intended the PBT to function as a preliminary screening tool and thus intended to allow police officers to request a PBT sample with something less than probable cause for arrest (see ¶ 14). See County of Jefferson v. Renz, 231 Wis. 2d 293, 603 N.W.2d 541 (1999). The supreme court concluded that under the circumstances of this case, there was probable cause as required by the statute to request the PBT (see ¶ 28).

    Real Property

    Condemnation – Value – Contamination – Evidence

    260 N. 12th St. LLC v. DOT, 2011 WI 103 (filed 22 Dec. 2011)

    The Wisconsin Department of Transportation (DOT) condemned Ryan’s commercial property as part of the state’s reconstruction of the Marquette interchange in Milwaukee. Ryan’s appraisers valued the property at approximately $3.5 million, while the state pegged it at $1.3 million, based in part on environmental contamination. A jury determined that the property’s value was approximately $2 million. In a published decision, the court of appeals affirmed, rejecting Ryan’s arguments that the contamination evidence was inadmissible and that the circuit court erred in some of its rulings on expert evidence. See 2010 WI App 138.

    The supreme court affirmed in an opinion authored by Justice Ziegler. The prime issue was whether the jury could consider the property’s contamination. The court held it could. “Subject to the circuit court’s discretion, evidence of environmental contamination and of remediation costs [is] admissible in condemnation proceedings so long as [it is] relevant to the fair market value of the property. A property’s environmental contamination and the costs to remediate it are relevant to the property’s fair market value if they would influence a prudent purchaser who is willing and able, but not obliged, to buy the property. To conclude, as a matter of law, that environmental contamination and remediation costs are not relevant to a property’s fair market value … ‘blinks at reality.’ [citation omitted] Indeed, in this context, we view evidence of environmental contamination no differently than evidence of a leaky basement, a cracked foundation, or a dilapidated roof: in each case, if the damage and the attendant costs of repair would influence a prudent purchaser in determining how much to pay for the property, then evidence of such damage and repair costs is relevant to fair market value and therefore admissible in condemnation proceedings” (¶ 48).

    The supreme court cautioned, however, that it was taking “no position on how the admission of such evidence in a condemnation proceeding may affect the property owner in a future environmental action, if one should occur” (¶ 69). It also considered and rejected a different approach found in Minnesota law that concerned potential future liability for pollution remediation by the owner (see ¶ 51).

    The court also addressed several issues involving expert testimony. First, the court held that a state appraiser properly testified to his opinion about value. Ryan took issue only with the witness’s methodology, a matter which went only to the weight of the evidence, not its admissibility. (The court explicitly noted that the current Daubert standard found in Wis. Stat. section 907.02 was not applicable to this appeal (see ¶ 55).) Second, the circuit court properly excluded expert testimony proffered by Ryan because the witnesses were named after the deadline established in the scheduling order. Specifically, Ryan failed to show good cause, and the trial judge reasonably found that neither expert fell within the class of “rebuttal witnesses” that was excepted by the order (see ¶ 62). Finally, the trial judge properly rejected Ryan’s proffered jury instruction in favor of giving Wisconsin Jury Instruction – Civil 8100. Ryan’s “bald assertion” that the instruction was inadequate was insufficient
    (see ¶ 67).

    Chief Justice Abrahamson concurred. “The valuation of condemned contaminated property is a developing area of the law. Only 12 states seem to have addressed the issue and only a slim majority of these states adhere to the rule that contamination and anticipated remediation costs are admissible as affecting the fair market value of condemned property. A slim minority of states exclude evidence of contamination and evidence of anticipated remediation costs, and some exclude only the latter” (¶ 76).

    “I would either dismiss this matter as improvidently granted so that the decision of the court of appeals will stand as precedent or adopt the decision of the court of appeals, noting that there are many challenges in implementing this decision” (¶ 80). “The majority opinion unfortunately makes the answer to the complex question of valuing contaminated condemned property deceptively simpler than it is, and therefore may lull litigants and courts into overlooking the complexities and possible injustices presented when valuing contaminated property in condemnation proceedings” (¶ 81).

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