1995 - 1996 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 3,
To 1995 ASSEMBLY BILL 146
June 28, 1995 - Offered by Representative Krug.
AB146-ASA3,1,6 1An Act to renumber 940.06; to amend 343.31 (3) (c), 346.65 (6) (a) 1., 346.65
2(6) (a) 2., 346.65 (6) (d), 939.22 (21) (d), 939.24 (1), 939.25 (1), 939.32 (1) (intro.),
3940.09 (1d), 940.09 (1m), 940.09 (2), 940.25 (1d), 940.25 (1m), 940.25 (2) and
4941.38 (1) (b) 4.; and to create 939.75, 940.06 (2), 940.09 (1) (c) to (e), 940.09
5(1g) (c) and (d), 940.195 and 940.25 (1) (c) to (e) of the statutes; relating to:
6causing harm or death to an unborn child and providing penalties.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB146-ASA3, s. 1 7Section 1. 343.31 (3) (c) of the statutes is amended to read:
AB146-ASA3,1,108 343.31 (3) (c) Any person convicted under s. 940.09 of causing the death of
9another or an unborn child by the operation or handling of a motor vehicle shall have
10his or her operating privilege revoked for 5 years.
AB146-ASA3, s. 2 11Section 2. 346.65 (6) (a) 1. of the statutes is amended to read:
AB146-ASA3,2,912 346.65 (6) (a) 1. Except as provided in this paragraph, the court may order a
13law enforcement officer to seize a motor vehicle, or, if the motor vehicle is not ordered
14seized, shall order a law enforcement officer to equip the motor vehicle with an

1ignition interlock device or immobilize any motor vehicle owned by the person whose
2operating privilege is revoked under s. 343.305 (10) or who committed a violation of
3s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or, (b), (c) or (d) or 940.25 (1) (a)
4or, (b), (c) or (d) if the person whose operating privilege is revoked under s. 343.305
5(10) or who is convicted of the violation has 2 prior suspensions, revocations or
6convictions within a 10-year period that would be counted under s. 343.307 (1). The
7court shall not order a motor vehicle equipped with an ignition interlock device or
8immobilized if that would result in undue hardship or extreme inconvenience or
9would endanger the health and safety of a person.
AB146-ASA3, s. 3 10Section 3. 346.65 (6) (a) 2. of the statutes is amended to read:
AB146-ASA3,2,1711 346.65 (6) (a) 2. The court shall order a law enforcement officer to seize a motor
12vehicle owned by a person whose operating privilege is revoked under s. 343.305 (10)
13or who commits a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a)
14or, (b), (c) or (d) or 940.25 (1) (a) or, (b), (c) or (d) if the person whose operating privilege
15is revoked under s. 343.305 (10) or who is convicted of the violation has 3 or more prior
16suspensions, revocations or convictions within a 10-year period that would be
17counted under s. 343.307 (1).
AB146-ASA3, s. 4 18Section 4. 346.65 (6) (d) of the statutes is amended to read:
AB146-ASA3,3,919 346.65 (6) (d) At the hearing set under par. (c), the state has the burden of
20proving to a reasonable certainty by the greater weight of the credible evidence that
21the motor vehicle is a motor vehicle owned by a person who committed a violation of
22s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a) or, (b), (c) or (d) or 940.25 (1) (a)
23or, (b), (c) or (d) and, if the seizure is under par. (a) 1., that the person had 2 prior
24convictions, suspensions or revocations within a 10-year period as counted under s.
25343.307 (1) or, if the seizure is under par. (a) 2., 3 or more prior convictions,

1suspensions or revocations within a 10-year period as counted under s. 343.307 (1).
2If the owner of the motor vehicle proves by a preponderance of the evidence that he
3or she was not convicted of a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09
4(1) (a) or, (b), (c) or (d) or 940.25 (1) (a) or, (b), (c) or (d), or, if the seizure is under par.
5(a) 1., that he or she did not have 2 prior convictions, suspensions or revocations
6within a 10-year period as counted under s. 343.307 (1) or, if the seizure is under par.
7(a) 2., 3 or more prior convictions, suspensions or revocations within a 10-year period
8as counted under s. 343.307 (1), the motor vehicle shall be returned to the owner upon
9the payment of storage costs.
AB146-ASA3, s. 5 10Section 5. 939.22 (21) (d) of the statutes is amended to read:
AB146-ASA3,3,1211 939.22 (21) (d) Battery, substantial battery or aggravated battery, as
12prohibited in s. 940.19 or 940.195.
AB146-ASA3, s. 6 13Section 6. 939.24 (1) of the statutes is amended to read:
AB146-ASA3,3,1914 939.24 (1) In this section, "criminal recklessness" means that the actor creates
15an unreasonable and substantial risk of death or great bodily harm to another
16human being and the actor is aware of that risk, except that for purposes of s. 940.06
17(2), "criminal recklessness" means that the actor creates an unreasonable and
18substantial risk of death or great bodily harm to an unborn child, the actor is aware
19of that risk and the actor knew or should have known that the woman was pregnant
.
AB146-ASA3, s. 7 20Section 7. 939.25 (1) of the statutes is amended to read:
AB146-ASA3,4,221 939.25 (1) In this section, "criminal negligence" means ordinary negligence to
22a high degree, consisting of conduct which that the actor should realize creates a
23substantial and unreasonable risk of death or great bodily harm to another, except
24that for purposes of ss. 940.06 (2) and 940.195, "criminal negligence" means ordinary
25negligence to a high degree, consisting of conduct that the actor should realize

1creates a substantial and unreasonable risk of death or great bodily harm to an
2unborn child
.
AB146-ASA3, s. 8 3Section 8. 939.32 (1) (intro.) of the statutes is amended to read:
AB146-ASA3,4,74 939.32 (1) (intro.) Whoever attempts to commit a felony or a battery as defined
5by
crime specified in s. 940.19 or theft as defined by s., 940.195 or 943.20 may be fined
6or imprisoned or both not to exceed one-half the maximum penalty for the completed
7crime; except:
AB146-ASA3, s. 9 8Section 9. 939.75 of the statutes is created to read:
AB146-ASA3,4,12 9939.75 Death or harm to an unborn child. (1) In this section and ss. 939.24
10(1), 939.25 (1), 940.06 (2), 940.09 (1) (c) to (e) and (1g) (c) and (d), 940.195 and 940.25
11(1) (c) to (e), "unborn child" means any individual of the human species from
12fertilization until birth that is gestating inside a woman.
AB146-ASA3,4,17 13(2) (a) In this subsection, "induced abortion" means the use of any instrument,
14medicine, drug or other substance or device in a medical procedure with the intent
15to terminate the pregnancy of a woman and with an intent other than to increase the
16probability of a live birth, to preserve the life or health of the infant after live birth
17or to remove a dead fetus.
AB146-ASA3,4,1918 (b) Sections 940.06 (2), 940.09 (1) (c) to (e) and (1g) (c) and (d), 940.195 and
19940.25 (1) (c) to (e) do not apply to any of the following:
AB146-ASA3,4,2120 1. An act that causes the death of an unborn child if the act was committed
21during any induced abortion, whether lawful or unlawful.
AB146-ASA3,4,2422 2. An act that is committed in accordance with the usual and customary
23standards of medical practice during diagnostic testing or therapeutic treatment
24performed by, or under the supervision of, a physician licensed under ch. 448.
AB146-ASA3,5,5
12h. An act by any health care provider, as defined in s. 155.01 (7), that is in
2accordance with a pregnant woman's power of attorney for health care instrument
3under ch. 155 or in accordance with a decision of a health care agent who is acting
4under a pregnant woman's power of attorney for health care instrument under ch.
5155.
AB146-ASA3,5,76 3. An act by a woman who is pregnant with an unborn child that results in the
7death of or great bodily harm or bodily harm to that unborn child.
AB146-ASA3,5,108 4. The prescription, dispensation or administration by any person lawfully
9authorized to do so and the use by a woman of any medicine, drug or device that is
10used as a method of birth control or is intended to prevent pregnancy.
AB146-ASA3,5,14 11(3) When the existence of an exception under sub. (2) has been placed in issue
12by the trial evidence, the state must prove beyond a reasonable doubt that the facts
13constituting the exception do not exist in order to sustain a finding of guilt under s.
14940.06 (2), 940.09 (1) (c) to (e) or (1g) (c) or (d), 940.195 or 940.25 (1) (c) to (e).
AB146-ASA3, s. 10 15Section 10. 940.06 of the statutes is renumbered 940.06 (1).
AB146-ASA3, s. 11 16Section 11. 940.06 (2) of the statutes is created to read:
AB146-ASA3,5,1817 940.06 (2) Whoever intentionally, recklessly or negligently causes the death of
18an unborn child is guilty of a Class C felony.
AB146-ASA3, s. 12 19Section 12. 940.09 (1) (c) to (e) of the statutes are created to read:
AB146-ASA3,5,2120 940.09 (1) (c) Causes the death of an unborn child by the operation or handling
21of a vehicle while under the influence of an intoxicant.
AB146-ASA3,5,2422 (d) Causes the death of an unborn child by the operation or handling of a vehicle
23while the person has a prohibited alcohol concentration, as defined in s. 340.01
24(46m).
AB146-ASA3,6,3
1(e) Causes the death of an unborn child by the operation of a commercial motor
2vehicle while the person has an alcohol concentration of 0.04 or more but less than
30.1.
AB146-ASA3, s. 13 4Section 13. 940.09 (1d) of the statutes is amended to read:
AB146-ASA3,6,105 940.09 (1d) If the person who committed an offense under sub. (1) (a) or, (b), (c)
6or (d)
has 2 or more prior convictions, suspensions or revocations in a 10-year period,
7as counted under s. 343.307 (1), the procedure under s. 346.65 (6) may be followed
8regarding the immobilization or seizure and forfeiture of a motor vehicle owned by
9the person who committed the offense or the equipping of a motor vehicle owned by
10the person with an ignition interlock device.
AB146-ASA3, s. 14 11Section 14. 940.09 (1g) (c) and (d) of the statutes are created to read:
AB146-ASA3,6,1312 940.09 (1g) (c) Causes the death of an unborn child by the operation or handling
13of a firearm or airgun while under the influence of an intoxicant.
AB146-ASA3,6,1714 (d) Causes the death of an unborn child by the operation or handling of a
15firearm or airgun while the person has a blood alcohol concentration of 0.1% or more
16by weight of alcohol in that person's blood or 0.10 grams or more of alcohol in 210
17liters of that person's breath.
AB146-ASA3, s. 15 18Section 15. 940.09 (1m) of the statutes is amended to read:
AB146-ASA3,7,819 940.09 (1m) A person may be charged with and a prosecutor may proceed upon
20an information based upon a violation of sub. (1) (a) or (b) or both or of, sub. (1) (a)
21or (bm) or both or of, sub. (1) (c) or (d) or both, sub. (1) (c) or (e) or both, sub. (1g) (a)
22or (b) or both or sub. (1g) (c) or (d) or both for acts arising out of the same incident or
23occurrence. If the person is charged with violating both sub. (1) (a) and (b) or, both
24sub. (1) (a) and (bm) or, both sub. (1) (c) and (d), both sub. (1) (c) and (e), both sub. (1g)
25(a) and (b) or both sub. (1g) (c) and (d) in the information, the crimes shall be joined

1under s. 971.12. If the person is found guilty of both sub. (1) (a) and (b) or of, both
2sub. (1) (a) and (bm) or of, both sub. (1) (c) and (d), both sub. (1) (c) and (e), both sub.
3(1g) (a) and (b) or both sub. (1g) (c) and (d) for acts arising out of the same incident
4or occurrence, there shall be a single conviction for purposes of sentencing and for
5purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6)
6(a) 2. and 3., under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1)
7(a), (b) and, (bm), (c), (d) and (e), and sub. (1g) (a) and, (b), (c) and (d), each require
8proof of a fact for conviction which the other does not require.
AB146-ASA3, s. 16 9Section 16. 940.09 (2) of the statutes is amended to read:
AB146-ASA3,7,1410 940.09 (2) The defendant has a defense if he or she proves by a preponderance
11of the evidence that the death would have occurred even if he or she had been
12exercising due care and he or she had not been under the influence of an intoxicant
13or did not have a blood alcohol concentration described under sub. (1) (b) or, (bm), (d)
14or (e)
or (1g) (b) or (d).
AB146-ASA3, s. 17 15Section 17. 940.195 of the statutes is created to read:
AB146-ASA3,7,18 16940.195 Battery to an unborn child. Whoever intentionally or negligently
17causes bodily harm to an unborn child by conduct that creates a substantial risk of
18great bodily harm is guilty of a Class D felony.
AB146-ASA3, s. 18 19Section 18. 940.25 (1) (c) to (e) of the statutes are created to read:
AB146-ASA3,7,2120 940.25 (1) (c) Causes great bodily harm to an unborn child by the operation of
21a vehicle while under the influence of an intoxicant.
AB146-ASA3,7,2422 (d) Causes great bodily harm to an unborn child by the operation of a vehicle
23while the person has a prohibited alcohol concentration, as defined in s. 340.01
24(46m).
AB146-ASA3,8,3
1(e) Causes great bodily harm to an unborn child by the operation of a
2commercial motor vehicle while the person has an alcohol concentration of 0.04 or
3more but less than 0.1.
AB146-ASA3, s. 19 4Section 19. 940.25 (1d) of the statutes is amended to read:
AB146-ASA3,8,105 940.25 (1d) If the person who committed the offense under sub. (1) (a) or, (b),
6(c) or (d)
has 2 or more prior convictions, suspensions or revocations in a 10-year
7period, as counted under s. 343.307 (1), the procedure under s. 346.65 (6) may be
8followed regarding the immobilization or seizure and forfeiture of a motor vehicle
9owned by the person who committed the offense or the equipping of a motor vehicle
10owned by the person with an ignition interlock device.
AB146-ASA3, s. 20 11Section 20. 940.25 (1m) of the statutes is amended to read:
AB146-ASA3,8,2412 940.25 (1m) A person may be charged with and a prosecutor may proceed upon
13an information based upon a violation of sub. (1) (a) or (b) or both or of, sub. (1) (a)
14or (bm) or both, sub. (1) (c) or (d) or both or sub. (1) (c) or (e) or both for acts arising
15out of the same incident or occurrence. If the person is charged with violating both
16sub. (1) (a) and (b) or, both sub. (1) (a) and (bm), both sub. (1) (c) and (d) or both sub.
17(1) (c) and (e)
in the information, the crimes shall be joined under s. 971.12. If the
18person is found guilty of both sub. (1) (a) and (b) or of, both sub. (1) (a) and (bm), both
19sub. (1) (c) and (d) or both sub. (1) (c) and (e)
for acts arising out of the same incident
20or occurrence, there shall be a single conviction for purposes of sentencing and for
21purposes of counting convictions under s. 23.33 (13) (b) 2 and 3, under s. 30.80 (6) (a)
222 or 3, under ss. 343.30 (1q) and 343.305 or under s. 350.11 (3) (a) 2 and 3. Subsection
23(1) (a), (b) and, (bm), (c), (d) and (e) each require proof of a fact for conviction which
24the other does not require.
AB146-ASA3, s. 21 25Section 21. 940.25 (2) of the statutes is amended to read:
AB146-ASA3,9,5
1940.25 (2) The defendant has a defense if he or she proves by a preponderance
2of the evidence that the great bodily harm would have occurred even if he or she had
3been exercising due care and he or she had not been under the influence of an
4intoxicant or did not have a blood alcohol concentration described under sub. (1) (b)
5or, (bm), (d) or (e).
AB146-ASA3, s. 22 6Section 22. 941.38 (1) (b) 4. of the statutes is amended to read:
AB146-ASA3,9,87 941.38 (1) (b) 4. Battery, substantial battery or aggravated battery, as
8prohibited in s. 940.19 or 940.195.
AB146-ASA3, s. 23 9Section 23. Initial applicability.
AB146-ASA3,9,11 10(1) This act first applies to offenses occurring on the effective date of this
11subsection.
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