Amendment SSA2-AB221

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JEO:kmg&mfd:jf

1997 - 1998 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 2, TO 1997 ASSEMBLY BILL 221

April 30, 1998 - Offered by Senator Moore.

AB221-SSA2,1,11 An Act to renumber 940.01 (1), 940.06, 940.08, 940.10, 940.23 (1), 940.23 (2) and 940.24; to amend 302.11 (1g) (a) 2., 343.31 (3) (c), 343.31 (3) (f), 346.65 (6) (a) 1., 346.65 (6) (a) 2., 346.65 (6) (d), 939.22 (21) (d), 939.24 (1), 939.25 (1), 939.32 (1) (intro.), 939.62 (2m) (a) 2., 940.01 (1) (title), 940.05 (2), 940.09 (1b), 940.09 (1d), 940.09 (1m), 940.09 (2), 940.25 (1b), 940.25 (1d), 940.25 (1m), 940.25 (2), 941.38 (1) (b) 4., 969.035 (1), 969.08 (10) (b), 973.0135 (1) (b) 2. and 980.01 (6) (b); and to create 939.75, 940.01 (1) (b), 940.02 (1m), 940.05 (2g), 940.05 (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e), 940.09 (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b), 940.23 (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) of the statutes; relating to: causing harm or death to a viable fetus and providing penalties.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB221-SSA2, s. 1 Section 1. 302.11 (1g) (a) 2. of the statutes is amended to read:

AB221-SSA2,2,5 302.11 (1g) (a) 2. Any felony under s. 940.02, 940.03, 940.05, 940.09 (1), 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305 (2), 940.31 (1) or (2) (b), 943.02, 943.10 (2), 943.23 (1g) or (1m), 943.32 (2), 946.43, 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

AB221-SSA2, s. 2 Section 2. 343.31 (3) (c) of the statutes is amended to read:

AB221-SSA2,2,12 343.31 (3) (c) Any person convicted under s. 940.09 of causing the death of another or of a viable fetus by the operation or handling of a motor vehicle shall have his or her operating privilege revoked for 5 years. If there was a minor passenger under 16 years of age or a viable fetus, as defined in s. 939.75 (1) (b), in the motor vehicle at the time of the violation that gave rise to the conviction under s. 940.09, the revocation period is 10 years.

AB221-SSA2, s. 3 Section 3. 343.31 (3) (f) of the statutes is amended to read:

AB221-SSA2,2,18 343.31 (3) (f) Any person convicted under s. 940.25 shall have his or her operating privilege revoked for 2 years. If there was a minor passenger under 16 years of age or a viable fetus, as defined in s. 939.75 (1) (b), in the motor vehicle at the time of the violation that gave rise to the conviction under s. 940.25, the revocation period is 4 years.

AB221-SSA2, s. 4 Section 4. 346.65 (6) (a) 1. of the statutes is amended to read:

AB221-SSA2,3,6 346.65 (6) (a) 1. Except as provided in this paragraph, the court may order a law enforcement officer to seize a motor vehicle, or, if the motor vehicle is not ordered seized, shall order a law enforcement officer to equip the motor vehicle with an ignition interlock device or immobilize any motor vehicle owned by the person whose operating privilege is revoked under s. 343.305 (10) or who committed a violation of s. 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) or, (b), (c) or (d) if the person whose operating privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 2 prior suspensions, revocations or convictions within a 10-year period that would be counted under s. 343.307 (1). The court shall not order a motor vehicle equipped with an ignition interlock device or immobilized if that would result in undue hardship or extreme inconvenience or would endanger the health and safety of a person.

AB221-SSA2, s. 5 Section 5. 346.65 (6) (a) 2. of the statutes is amended to read:

AB221-SSA2,3,14 346.65 (6) (a) 2. The court shall order a law enforcement officer to seize a motor vehicle owned by a person whose operating privilege is revoked under s. 343.305 (10) or who commits a violation of s. 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) or, (b), (c) or (d) if the person whose operating privilege is revoked under s. 343.305 (10) or who is convicted of the violation has 3 or more prior suspensions, revocations or convictions within a 10-year period that would be counted under s. 343.307 (1).

AB221-SSA2, s. 6 Section 6. 346.65 (6) (d) of the statutes is amended to read:

AB221-SSA2,4,6 346.65 (6) (d) At the hearing set under par. (c), the state has the burden of proving to a reasonable certainty by the greater weight of the credible evidence that the motor vehicle is a motor vehicle owned by a person who committed a violation of s. 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) or, (b), (c) or (d) and, if the seizure is under par. (a) 1., that the person had 2 prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1) or, if the seizure is under par. (a) 2., 3 or more prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1). If the owner of the motor vehicle proves by a preponderance of the evidence that he or she was not convicted of a violation of s. 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) or, (b), (c) or (d), or, if the seizure is under par. (a) 1., that he or she did not have 2 prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1) or, if the seizure is under par. (a) 2., 3 or more prior convictions, suspensions or revocations within a 10-year period as counted under s. 343.307 (1), the motor vehicle shall be returned to the owner upon the payment of storage costs.

AB221-SSA2, s. 7 Section 7. 939.22 (21) (d) of the statutes is amended to read:

AB221-SSA2,4,9 939.22 (21) (d) Battery, substantial battery or aggravated battery, as prohibited in s. 940.19 or 940.195.

AB221-SSA2, s. 8 Section 8. 939.24 (1) of the statutes is amended to read:

AB221-SSA2,4,16 939.24 (1) In this section, "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk, except that for purposes of ss. 940.02 (1m), 940.06 (2) and 940.23 (1) (b) and (2) (b), "criminal recklessness" means that the actor creates an unreasonable and substantial risk of death or great bodily harm to a viable fetus and the actor is aware of that risk.

AB221-SSA2, s. 9 Section 9. 939.25 (1) of the statutes is amended to read:

AB221-SSA2,4,24 939.25 (1) In this section, "criminal negligence" means ordinary negligence to a high degree, consisting of conduct which that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another, except that for purposes of ss. 940.08 (2), 940.10 (2) and 940.24 (2), "criminal negligence" means ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to a viable fetus.

AB221-SSA2, s. 10 Section 10. 939.32 (1) (intro.) of the statutes is amended to read:

AB221-SSA2,5,4 939.32 (1) (intro.) Whoever attempts to commit a felony or a battery as defined by crime specified in s. 940.19 or theft as defined by s., 940.195 or 943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; except:

AB221-SSA2, s. 11 Section 11. 939.62 (2m) (a) 2. of the statutes, as affected by 1997 Wisconsin Act .... (Assembly Bill 220), is amended to read:

AB221-SSA2,5,11 939.62 (2m) (a) 2. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 (1), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43, 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

AB221-SSA2, s. 12 Section 12. 939.75 of the statutes is created to read:

AB221-SSA2,5,16 939.75 Death or harm to a viable fetus. (1) In this section and ss. 939.24 (1), 939.25 (1), 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e), (1b) and (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) and (1b):

AB221-SSA2,5,17 (a) "Viability" has the meaning given in s. 940.15 (1).

AB221-SSA2,5,19 (b) "Viable fetus" means any individual of the human species from viability until birth.

AB221-SSA2,5,24 (2) (a) In this subsection, "induced abortion" means the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.

AB221-SSA2,6,3 (b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:

AB221-SSA2,6,5 1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04, 940.13 and 940.15 to an induced abortion.

AB221-SSA2,6,8 2. An act that is committed in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a physician licensed under ch. 448.

AB221-SSA2,6,13 2h. An act by any health care provider, as defined in s. 155.01 (7), that is in accordance with a pregnant woman's power of attorney for health care instrument under ch. 155 or in accordance with a decision of a health care agent who is acting under a pregnant woman's power of attorney for health care instrument under ch. 155.

AB221-SSA2,6,16 3. An act by a woman who is pregnant with a viable fetus that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that viable fetus.

AB221-SSA2,6,19 4. The prescription, dispensation or administration by any person lawfully authorized to do so and the use by a woman of any medicine, drug or device that is used as a method of birth control or is intended to prevent pregnancy.

AB221-SSA2,6,25 (3) When the existence of an exception under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the exception do not exist in order to sustain a finding of guilt under s. 940.01 (1) (b), 940.02 (1m), 940.05 (2g), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) or (1g) (c) or (d), 940.10 (2), 940.195, 940.23 (1) (b) or (2) (b), 940.24 (2) or 940.25 (1) (c) to (e).

AB221-SSA2, s. 13 Section 13. 940.01 (1) (title) of the statutes is amended to read:

AB221-SSA2,7,2 940.01 (1) (title) Offense Offenses.

AB221-SSA2, s. 14 Section 14. 940.01 (1) of the statutes is renumbered 940.01 (1) (a).

AB221-SSA2, s. 15 Section 15. 940.01 (1) (b) of the statutes is created to read:

AB221-SSA2,7,8 940.01 (1) (b) Except as provided in sub. (2), whoever causes the death of a viable fetus with intent to kill that viable fetus or with intent to kill the woman who the actor knows or should know is pregnant with that viable fetus is guilty of a Class A felony.

AB221-SSA2, s. 16 Section 16. 940.02 (1m) of the statutes is created to read:

AB221-SSA2,7,13 940.02 (1m) Whoever recklessly causes the death of a viable fetus under circumstances that show utter disregard for the life of that viable fetus or for the life of the woman who the actor knows or should know is pregnant with that viable fetus is guilty of a Class B felony.

AB221-SSA2, s. 17 Section 17. 940.05 (2) of the statutes is amended to read:

AB221-SSA2,7,17 940.05 (2) In prosecutions under this section 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.

AB221-SSA2, s. 18 Section 18. 940.05 (2g) of the statutes is created to read: