940.225 Annotation "Unconscious" as used in (2) (d) is a loss of awareness which may be caused by sleep. State v. Curtis, 144 W (2d) 691, 424 NW (2d) 719 (Ct. App. 1988).
940.225 Annotation See note to 904.01, citing State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
940.225 Annotation A defendant's lack of intent to make a victim believe the defendant is armed is irrelevant in finding a violation of sub. (1) (b); if the victim's belief that the defendant was armed is reasonable, that is enough. State v. Hubanks, 173 W (2d) 1, 496 NW (2d) 96 (Ct. App. 1992).
940.225 Annotation Attempted fourth-degree sexual assault is not offense under Wisconsin law. State v. Cvorovic, 158 W (2d) 630, 462 NW (2d) 897 (Ct. App. 1990).
940.225 Annotation Discussion of "use or threat of force or violence" under (2) (a). State v. Bonds, 165 W (2d) 27, 477 NW (2d) 265 (1991).
940.225 Annotation Dog may be dangerous weapon under (1) (b). State v. Sinks, 168 W (2d) 245, 483 NW (2d) 286 (Ct. App. 1992).
940.225 Annotation Convictions under both (1) (d) and (2) (d) did not violate double jeopardy. State v. Sauceda, 168 W (2d) 486, 485 NW (2d) 1 (1992).
940.225 Annotation Sub. (2) (d) is not unconstitutionally vague. Expert evidence regarding sleep based solely on a hypothetical situation similar but not identical to the facts of the case was inadmissible. State v. Pittman, 174 W (2d) 255, 496 NW (2d) 74 (1993), 445.
940.225 Annotation Convictions under both subs. (2) (a) and (2) (e) did not violate double jeopardy. State v. Selmon, 175 W (2d) 155, 877 NW (2d) 498 (Ct. App. 1993).
940.225 Annotation Discussion of relevant evidence in child sexual assault case. In Interest of Michael R.B. 175 W (2d) 713, 499 NW (2d) 641 (1993).
940.225 Annotation "Great bodily harm" is a distinct element under sub. (1) (a) and need not be caused by the sexual act. State v. Schambow, 176 W (2d) 286, NW (2d) (Ct. App. 1993).
940.225 Annotation Intent is not an element of sub. (2) (a); lack of intent element does not render this provision constitutionally invalid. State v. Neumann, 179 W (2d) 687, 508 NW (2d) 54 (Ct. App. 1993).
940.225 Annotation Previous use of force, and victim's resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese, 191 W (2d) 205, 528 NW (2d) 63 (Ct. App. 1995).
940.225 Annotation Violation of any of the provisions of this section does not immunize the defendant from violating the same or another provision in the course of sexual misconduct. Two acts of vaginal intercourse are sufficiently different in fact to justify separate charges under sub. (1) (d). State v. Kruzycki, 192 W (2d) 509, 531 NW (2d) 429 (Ct. App. 1995).
940.225 Annotation A defendant need not be informed of the potential of a ch. 980 commitment for a guilty plea to a sexual assault charge to be knowingly made as the commitment is a collateral and not direct consequence of the plea. State v. Myers, 199 W (2d) 391, 544 NW (2d) 609 (Ct. App. 1996).
940.225 Annotation Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 W (2d) 84, 572 NW (2d) 496 (Ct. App. 1997).
940.225 Annotation Conviction on 2 counts of rape, where offenses occurred 25 minutes apart in same location, did not violate double jeopardy provisions of U.S. Constitution. Harrell v. Israel, 478 F Supp. 752 (1979).
940.225 Annotation Conviction for attempted first degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F Supp. 1264 (1979).
940.23 940.23 Reckless injury.
940.23(1)(1)First-degree reckless injury.
940.23(1)(a)(a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class C felony.
940.23(1)(b) (b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class C felony.
940.23(2) (2)Second-degree reckless injury.
940.23(2)(a)(a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class D felony.
940.23(2)(b) (b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class D felony.
940.23 History History: 1987 a. 399; 1997 a. 295.
940.23 Note Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.
940.23 Annotation Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]
940.23 Annotation First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 W (2d) 405, 518 NW (2d) 257 (Ct. App. 1994).
940.24 940.24 Injury by negligent handling of dangerous weapon, explosives or fire.
940.24(1) (1) Whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class E felony.
940.24(2) (2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class E felony.
940.24 History History: 1977 c. 173; 1987 a. 399; 1997 a. 295.
940.24 Note Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]
940.24 Annotation Dogs must be intended to be weapons before their handling can result in a violation of this section. Because a dog bites it does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, where those measures are wholly inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh, 220 W (2d) 102, 582 NW (2d) 440 (Ct. App. 1998).
940.25 940.25 Injury by intoxicated use of a vehicle.
940.25(1) (1) Any person who does any of the following is guilty of a Class D felony:
940.25(1)(a) (a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.
940.25(1)(b) (b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
940.25(1)(bm) (bm) Causes great bodily harm to another human being 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.
940.25(1)(c) (c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.
940.25(1)(d) (d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
940.25(1)(e) (e) Causes great bodily harm to 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.
940.25(1b) (1b) If there was a minor passenger under 16 years of age 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.
940.25(1d) (1d) If the person who committed the offense under sub. (1) (a), (b), (c) or (d) has 2 or more prior convictions, suspensions or revocations, as counted under s. 343.307 (1), the procedure under s. 346.65 (6) may be followed regarding the immobilization or seizure and forfeiture of a motor vehicle owned by the person who committed the offense or the equipping of a motor vehicle owned by the person with an ignition interlock device.
940.25 Note NOTE: Sub. (1d) is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
940.25(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 or sub. (1) (c) or (e) 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) or both sub. (1) (c) and (e) 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) or both sub. (1) (c) and (e) 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. or 3., under ss. 343.30 (1q) and 343.305 or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (b), (bm), (c), (d) and (e) each require proof of a fact for conviction which the other does not require.
940.25(2) (2) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm 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), or (bm), (d) or (e).
940.25(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.
940.25 Note NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
940.25 Annotation Double jeopardy clause was not violated by charge under sub. (1) (c), 1987 stats. [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff, 114 W (2d) 402, 338 NW (2d) 466 (1983).
940.25 Annotation Trial court did not err in refusing to admit expert testimony indicating that victims would not have suffered same injury had they been wearing seat belts; evidence not relevant to defense under (2). State v. Turk, 154 W (2d) 294, 453 NW (2d) 163 (1990).
940.285 940.285 Abuse of vulnerable adults.
940.285(1) (1)Definitions. In this section:
940.285(1)(a) (a) "Developmentally disabled person" has the meaning specified in s. 55.01 (2).
940.285(1)(b) (b) "Infirmities of aging" has the meaning specified in s. 55.01 (3).
940.285(1)(bm) (bm) "Maltreatment" includes any of the following conduct:
940.285(1)(bm)1. 1. Conduct that causes or could reasonably be expected to cause bodily harm or great bodily harm.
940.285(1)(bm)2. 2. Restraint, isolation or confinement that causes or could reasonably be expected to cause bodily harm or great bodily harm or mental or emotional damage, including harm to the vulnerable adult's psychological or intellectual functioning that is exhibited by severe anxiety, depression, withdrawal, regression or outward aggressive behavior or a combination of these behaviors. This subdivision does not apply to restraint, isolation or confinement by order of a court or other lawful authority.
940.285(1)(bm)3. 3. Deprivation of a basic need for food, shelter, clothing or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement or court order.
940.285(1)(c) (c) "Mental illness" has the meaning specified in s. 55.01 (4m).
940.285(1)(d) (d) "Other like incapacities" has the meaning specified in s. 55.01 (5).
940.285(1)(dm) (dm) "Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
940.285(1)(e) (e) "Vulnerable adult" means any person 18 years of age or older who either is a developmentally disabled person or has infirmities of aging, mental illness or other like incapacities and who is:
940.285(1)(e)1. 1. Substantially mentally incapable of providing for his or her needs for food, shelter, clothing or personal or health care; or
940.285(1)(e)2. 2. Unable to report cruel maltreatment without assistance.
940.285(2) (2)Maltreatment; penalties.
940.285(2)(a)(a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):
940.285(2)(a)1. 1. Intentionally subjects a vulnerable adult to maltreatment.
940.285(2)(a)2. 2. Recklessly subjects a vulnerable adult to maltreatment.
940.285(2)(a)3. 3. Negligently subjects a vulnerable adult to maltreatment.
940.285(2)(b)1g.1g. Any person violating par. (a) under circumstances that cause death is guilty of a Class B felony.
940.285(2)(b)1m. 1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class C felony.
940.285(2)(b)1r. 1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class D felony.
940.285(2)(b)2. 2. Any person violating par. (a) 1. under circumstances that cause or are likely to cause bodily harm is guilty of a Class E felony.
940.285(2)(b)3. 3. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class E felony.
940.285(2)(b)4. 4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
940.285(2)(b)5. 5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
940.285 History History: 1985 a. 306; 1993 a. 445; 1997 a. 180.
940.29 940.29 Abuse of residents of penal facilities. Any person in charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class E felony.
940.291 940.291 Law enforcement officer; failure to render aid.
940.291(1)(1) Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive. A violation for intentionally failing to render first aid under this subsection applies only to first aid which the officer has the knowledge and ability to render.
940.291(2) (2) Any peace officer who knowingly permits another person to violate sub. (1), while acting in the course of employment or under the authority of employment, is guilty of a Class A misdemeanor.
940.291 History History: 1983 a. 27.
940.295 940.295 Abuse and neglect of patients and residents.
940.295(1)(1)Definitions. In this section:
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