Section 940.09. Homicide by intoxicated use of vehicle or firearm.

 

(1)  Any person who does any of the following may be penalized as provided in sub. (1c) :

(a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.

(am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

(b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m) .

(bm) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.

(cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

(d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m) .

(e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

(1c)  

(a) Except as provided in par. (b) , a person who violates sub. (1) is guilty of a Class D felony.

(b) A person who violates sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2) .

(1d)  A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301 .

(1g)  Any person who does any of the following is guilty of a Class D felony:

(a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.

(am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.

(b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.

(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.

(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.

(d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.

(1m)  

(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a) , (am) , or (b) ; any combination of sub. (1) (a) , (am) , or (bm) ; any combination of sub. (1) (c) , (cm) , or (d) ; any combination of sub. (1) (c) , (cm) , or (e) ; any combination of sub. (1g) (a) , (am) , or (b) ; or any combination of sub. (1g) (c) , (cm) , or (d) for acts arising out of the same incident or occurrence.

(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a) , the crimes shall be joined under s. 971.12 . If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3. , under s. 23.335 (23) (c) 2. and 3. , under s. 30.80 (6) (a) 2. and 3. , under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a) , (am) , (b) , (bm) , (c) , (cm) , (d) , and (e) each require proof of a fact for conviction which the others do not require, and sub. (1g) (a) , (am) , (b) , (c) , (cm) , and (d) each require proof of a fact for conviction which the others do not require.

(2)  

(a) In any action under this section, the defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b) , (bm) , (d) or (e) or (1g) (b) or (d) .

(b) In any action under sub. (1) (am) or (cm) or (1g) (am) or (cm) that is based on the defendant allegedly having a detectable amount of methamphetamine or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.

(3)  An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t) , 23.335 (12) (j) , 30.686 , 346.635 or 350.106 .

1977 c. 173 ; 1981 c. 20 , 184 , 314 , 391 ; 1983 a. 459 ; 1985 a. 331 ; 1987 a. 399 ; 1989 a. 105 , 275 , 359 ; 1991 a. 32 , 277 ; 1993 a. 317 ; 1995 a. 425 , 436 ; 1997 a. 237 , 295 , 338 ; 1999 a. 32 , 109 ; 2001 a. 16 , 109 ; 2003 a. 30 , 97 ; 2009 a. 100 ; 2015 a. 170 ; 2015 a. 197 s. 51 .

Note

For legislative intent see chapter 20, laws of 1981 , section 2051 (13) . Microsoft Windows NT 6.1.7601 Service Pack 1 Probable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley, 92 Wis. 2d 860 , 286 N.W.2d 153 (Ct. App. 1979). Microsoft Windows NT 6.1.7601 Service Pack 1 Each death caused by an intoxicated operator's negligence is chargeable as a separate offense. State v. Rabe, 96 Wis. 2d 48 , 291 N.W.2d 809 (1980). Microsoft Windows NT 6.1.7601 Service Pack 1 Because driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver's intoxication and the victim's death. Sub. (2) does not violate the right against self-incrimination. State v. Caibaiosai, 122 Wis. 2d 587 , 363 N.W.2d 574 (1985). Microsoft Windows NT 6.1.7601 Service Pack 1Affirmed. State v. Fonte, 2005 WI 77 , 281 Wis. 2d 654 , 698 N.W.2d 594 , 03-2097 . Microsoft Windows NT 6.1.7601 Service Pack 1 The definition of vehicle in s. 939.22 (44) applies to this section and includes a tractor. State v. Sohn, 193 Wis. 2d 346 , 535 N.W.2d 1 (Ct. App. 1995). Microsoft Windows NT 6.1.7601 Service Pack 1 Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 Wis. 2d 432 , 538 N.W.2d 821 (Ct. App. 1995), 94-2187 . Microsoft Windows NT 6.1.7601 Service Pack 1 The defense under sub. (2) does not require an intervening cause; a victim's conduct can be the basis of the defense. The s. 939.14 rule that contributory negligence is not a defense to a crime does not prevent considering the victim's negligence in relation to causation. State v. Lohmeier, 205 Wis. 2d 183 , 556 N.W.2d 90 (1996), 94-2187 . Microsoft Windows NT 6.1.7601 Service Pack 1 Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392 , 576 N.W.2d 912 (1998), 96-2830 . Microsoft Windows NT 6.1.7601 Service Pack 1 The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is prospectively abrogated. State v. Picotte, 2003 WI 42 , 261 Wis. 2d 249 , 661 N.W.2d 381 , 01-3063 . Microsoft Windows NT 6.1.7601 Service Pack 1 Defendant's conviction under sub. (1) (c) for causing the death of an unborn child was not unconstitutional. The court rejected the assertion that s. 939.75 (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson, 2012 WI App 101 , 344 Wis. 2d 126 , 822 N.W.2d 484 , 11-1399 . Microsoft Windows NT 6.1.7601 Service Pack 1This statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (W. D. Wis. 1986). Microsoft Windows NT 6.1.7601 Service Pack 1 Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995. Microsoft Windows NT 6.1.7601 Service Pack 1