Feed for /1999/statutes/statutes/940 PDF
940.05(1)(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:
940.05(1)(a) (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
940.05(1)(b) (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2) (2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.
940.05(2g) (2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:
940.05(2g)(a) (a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
940.05(2g)(b) (b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2h) (2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.
940.05(3) (3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.
940.05 History History: 1987 a. 399; 1997 a. 295.
940.05 Note Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.
940.05 Annotation Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state's inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.
940.05 Annotation When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury's finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]
940.05 Annotation The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
940.05 Annotation Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.06 940.06 Second-degree reckless homicide.
940.06(1) (1) Whoever recklessly causes the death of another human being is guilty of a Class C felony.
940.06(2) (2) Whoever recklessly causes the death of an unborn child is guilty of a Class C felony.
940.06 History History: 1987 a. 399; 1997 a. 295.
940.06 Note Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S]
940.06 Annotation 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).
940.06 Annotation Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.07 940.07 Homicide resulting from negligent control of vicious animal. Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class C felony.
940.07 History History: 1977 c. 173.
940.08 940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.
940.08(1) (1) Whoever causes the death of another human being by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class D felony.
940.08(2) (2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class D felony.
940.08 History History: 1977 c. 173; 1985 a. 293; 1987 a. 399; 1997 a. 295.
940.08 Note Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons in addition to firearm, airgun, knife or bow and arrow. See s. 939.22 (10). [Bill 191-S]
940.09 940.09 Homicide by intoxicated use of vehicle or firearm.
940.09(1)(1) Any person who does any of the following is guilty of a Class B felony:
940.09(1)(a) (a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(b) (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).
940.09(1)(bm) (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 0.1.
940.09(1)(c) (c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(d) (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).
940.09(1)(e) (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 0.1.
940.09(1b) (1b) If there was a minor passenger under 16 years of age or an unborn child in the motor vehicle at the time of the violation that gave rise to the conviction under sub. (1), any applicable maximum fine or imprisonment specified for the conviction is doubled.
940.09(1d) (1d)
940.09(1d)(a)(a) If a person who committed an offense under sub. (1) (a), (b), (c) or (d) has one or more prior convictions, suspensions or revocations, counting convictions under this section and s. 940.09 (1) in the person's lifetime plus other convictions, suspensions or revocations counted under s. 343.307 (1), the procedure under s. 343.301 shall be followed if the court orders the the equipping of a motor vehicle owned by the person with an ignition interlock device or the immobilization of the motor vehicle.
Effective date note NOTE: Par. (a) is created eff. 1-1-02 by 1999 Wis. Act 109.
940.09(1d)(b) (b) If the person who committed an offense under sub. (1) (a), (b), (c) or (d) has 2 or more prior convictions, suspensions or revocations, counting convictions under sub. (1) and s. 940.25 in the person's lifetime plus other convictions, suspensions or revocations counted under s. 343.307 (1), the procedure under s. 346.65 (6) shall be followed if the court orders the seizure and forfeiture of a motor vehicle owned by the person who committed the offense.
940.09(1g) (1g) Any person who does any of the following is guilty of a Class D felony:
940.09(1g)(a) (a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(b) (b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.1 or more.
940.09(1g)(c) (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.
940.09(1g)(d) (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 0.1 or more.
940.09(1m) (1m) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of sub. (1) (a) or (b) or both, sub. (1) (a) or (bm) or both, sub. (1) (c) or (d) or both, sub. (1) (c) or (e) or both, sub. (1g) (a) or (b) or both or sub. (1g) (c) or (d) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both sub. (1) (a) and (b), both sub. (1) (a) and (bm), both sub. (1) (c) and (d), both sub. (1) (c) and (e), both sub. (1g) (a) and (b) or both sub. (1g) (c) and (d) in the information, the crimes shall be joined under s. 971.12. If the person is found guilty of both sub. (1) (a) and (b), both sub. (1) (a) and (bm), both sub. (1) (c) and (d), both sub. (1) (c) and (e), both sub. (1g) (a) and (b) or both sub. (1g) (c) and (d) 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. 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), (b), (bm), (c), (d) and (e), and sub. (1g) (a), (b), (c) and (d), each require proof of a fact for conviction which the other does not require.
940.09(2) (2) 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 or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e) or (1g) (b) or (d).
940.09(3) (3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.
940.09 Note NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
940.09 Annotation 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).
940.09 Annotation 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).
940.09 Annotation 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).
940.09 Annotation 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).
940.09 Annotation 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).
940.09 Annotation 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).
940.09 Annotation 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).
940.09 AnnotationThis statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (W. D. Wis. 1986).
940.09 Annotation Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995.
940.10 940.10 Homicide by negligent operation of vehicle.
940.10(1)(1) Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class E felony.
940.10(2) (2) Whoever causes the death of an unborn child by the negligent operation or handling of a vehicle is guilty of a Class E felony.
940.10 History History: 1987 a. 399; 1997 a. 295.
940.10 Note Judicial Council Note, 1988 Homicide by negligent operation of vehicle is analogous to prior s. 940.08. The mental element is criminal negligence as defined in s. 939.25. [Bill 191-S]
940.10 Annotation A motorist was properly convicted under this section for running a red light at 50 m.p.h., even though speed limit was 55 m.p.h. State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).
940.10 Annotation The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
940.10 Annotation A corporation may be subject to criminal liability under this section. State v. Knutson, Inc. 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995). See also, State v. Steenberg Homes, Inc. 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998).
940.10 Annotation It is not a requirement for finding criminal negligence that the actor be specifically warned that his or her conduct may result in harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999).
940.11 940.11 Mutilating or hiding a corpse.
940.11(1) (1) Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class C felony.
940.11(2) (2) Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class D felony.
940.11(3) (3) A person may not be subject to prosecution under both this section and s. 946.47 for his or her acts regarding the same corpse.
940.11 History History: 1991 a. 205.
940.12 940.12 Assisting suicide. Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class D felony.
940.12 History History: 1977 c. 173.
940.13 940.13 Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.
940.13 History History: 1985 a. 56.
940.15 940.15 Abortion.
940.15(1)(1) In this section, "viability" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.
940.15(2) (2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman's attending physician, is guilty of a Class E felony.
940.15(3) (3)Subsection (2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.
940.15(4) (4) Any abortion performed under sub. (3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman's attending physician, shall be performed in a hospital on an inpatient basis.
940.15(5) (5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class E felony.
940.15(6) (6) Any physician who intentionally performs an abortion under sub. (3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class E felony.
940.15(7) (7)Subsections (2) to (6) and s. 939.05, 939.30 or 939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.
940.15 History History: 1985 a. 56.
940.16 940.16 Partial-birth abortion.
Loading...
Loading...
This is an archival version of the Wis. Stats. database for 1999. See Are the Statutes on this Website Official?