940.04 History
History: 2001 a. 109.
940.04 Annotation
Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla,
87 Wis. 2d 441,
275 N.W.2d 112 (Ct. App. 1978).
940.04 Annotation
Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to
Roe v. Wade. State v. Black,
188 Wis. 2d 639,
526 N.W.2d 132 (1994).
940.04 Annotation
This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade,
410 U.S. 113 (1973).
940.04 Annotation
The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo,
423 U.S. 9 (1975).
940.04 AnnotationThe viability of an unborn child is discussed. Colautti v. Franklin,
439 U.S. 379 (1979).
940.04 Annotation
Any law requiring parental consent for a minor to obtain an abortion must ensure that the parent does not have absolute, and possibly arbitrary, veto power. Bellotti v. Baird,
443 U.S. 622 (1979).
940.04 Annotation
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae,
448 U.S. 297 (1980).
940.04 Annotation
Abortion issues are discussed. Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcraft,
462 U.S. 476 (1983); Simopoulas v. Virginia,
462 U.S. 506 (1983).
940.04 Annotation
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey,
505 U.S. 833,
120 L. Ed. 2d 674 (1992).
940.04 Annotation
Wisconsin's abortion statute, 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann,
310 F. Supp. 293 (1970).
940.04 Annotation
When U.S. supreme court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann,
368 F. Supp. 1352 (1974).
940.04 Annotation
State regulation of abortion. 1970 WLR 933.
940.05
940.05
Second-degree intentional homicide. 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 D felony.
940.06(2)
(2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.
Effective date note
NOTE: This section is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
940.06 Second-degree reckless homicide. (1) Whoever recklessly causes the death of another human being is guilty of a Class C felony.
Effective date text
(2) Whoever recklessly causes the death of an unborn child is guilty of a Class C felony.
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 G felony.
Effective date note
NOTE: This section is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
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;
2001 a. 109.
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 G 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 G felony.
Effective date note
NOTE: This section is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
940.08 Homicide by negligent handling of dangerous weapon, explosives or fire. (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.
Effective date text
(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 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 may be penalized as provided in
sub. (1c):
Effective date note
NOTE: Sub. (1)(intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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(1c)(a)(a) Except as provided in
par. (b), a person who violates
sub. (1) is guilty of a Class D felony.
940.09(1c)(b)
(b) A person who violates
sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under
s. 343.307 (2).
940.09(1d)(a)1.1. Except as provided in
subd. 2., 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. 343.301 shall be followed if the court enters an order regarding operating privilege restriction or enters an order regarding immobilization.
940.09(1d)(a)2.
2. Notwithstanding
par. (b), if the person who committed an offense under
sub. (1) (a),
(b),
(c), or
(d) has 2 or more convictions, suspensions, or revocations counted under
s. 343.307 (1) within any 5-year period, the procedure under
s. 343.301 shall be followed if the court enters an order regarding operating privilege restriction and the installation of an ignition interlock device or enters an order regarding immobilization.
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 the motor vehicle owned by the person and used in the violation.
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 History
History: 1977 c. 173;
1981 c. 20,
184,
314,
391;
1983 a. 459;
1985 a. 331;
1987 a. 399;
1989 a. 105,
275,
359;
1991 a. 32,
277;
1993 a. 317;
1995 a. 425,
436;
1997 a. 237,
295,
338;
1999 a. 32,
109;
2001 a. 16,
109.
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).
