940.225 Annotation
Convictions under both subs. (1) (d) and (2) (d) did not violate double jeopardy. State v. Sauceda,
168 Wis. 2d 486,
485 N.W.2d 1 (1992).
940.225 Annotation
A defendant's lack of intent to make a victim believe that he was armed was irrelevant in finding a violation of sub. (1) (b); if the victim's belief that the defendant was armed was reasonable, that is enough. State v. Hubanks,
173 Wis. 2d 1,
496 N.W.2d 96 (Ct. App. 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 Wis. 2d 255,
496 N.W.2d 74 (1993).
940.225 Annotation
Convictions under both subs. (2) (a) and (2) (e) did not violate double jeopardy. State v. Selmon,
175 Wis. 2d 155,
877 N.W.2d 498 (Ct. App. 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 Wis. 2d 286, N.W.2d (Ct. App. 1993).
940.225 Annotation
Intent is not an element of sub. (2) (a); lack of an intent element does not render this provision constitutionally invalid. State v. Neumann,
179 Wis. 2d 687,
508 N.W.2d 54 (Ct. App. 1993).
940.225 Annotation
A previous use of force, and the victim's resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese,
191 Wis. 2d 205,
528 N.W.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 Wis. 2d 509,
531 N.W.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 Wis. 2d 391,
544 N.W.2d 609 (Ct. App. 1996).
940.225 Annotation
For a guilty plea to a sexual assault charge to be knowingly made, a defendant need not be informed of the potential of being required to register as a convicted sex offender under s. 301.45 or that failure to register could result in imprisonment, as the commitment is a collateral, not direct, consequence of the plea. State v. Bollig, 2000 WI 6,
232 Wis. 2d 561,
605 N.W.2d 199.
940.225 Annotation
Conviction on 2 counts of rape, for acts occurring 25 minutes apart in the same location, did not violate double jeopardy. Harrell v. Israel,
478 F. Supp. 752 (1979).
940.225 Annotation
A conviction for attempted 1st 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)(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)(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 Wis. 2d 405,
518 N.W.2d 257 (Ct. App. 1994).
940.23 Annotation
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z.
228 Wis. 2d 468,
596 N.W.2d 490 (Ct. App. 1999).
940.23 Annotation
Utter disregard for human life is not a sub-part of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant's state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen, 2000 WI 84,
236 Wis. 2d 521,
613 N.W.2d 170.
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 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]
940.25
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 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.
940.25(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 equipping of a motor vehicle owned by the person with an ignition interlock device or the immobilization of the motor vehicle.
940.25(1d)(b)
(b) If the person who committed the offense under
sub. (1) (a),
(b),
(c) or
(d) has 2 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. 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.
Effective date note
NOTE: Par. (a) is shown as created and par. (b) is shown as renumbered from sub. (1d) eff. 1-1-02 by
1999 Wis. Act 109.
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) (b),
(bm),
(d) or
(e).
940.25 History
History: 1977 c. 193,
272;
1981 c. 20,
184;
1983 a. 459;
1985 a. 331;
1987 a. 399;
1989 a. 105,
275,
359;
1991 a. 277;
1993 a. 317,
428,
478;
1995 a. 425,
436;
1997 a. 237,
295;
1999 a. 32,
109,
186.
940.25 Annotation
The double jeopardy clause was not violated by a charge under sub. (1) (c), 1987 stats. [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff,
114 Wis. 2d 402,
338 N.W.2d 466 (1983).
940.25 Annotation
The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk,
154 Wis. 2d 294,
453 N.W.2d 163 (1990).
940.25 Annotation
Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh,
226 Wis. 2d 718,
595 N.W.2d 330 (1999).
940.285
940.285
Abuse of vulnerable adults. 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)(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(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)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.
940.29
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.
