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
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
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.
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),
96-2830.
940.06 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
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.
940.07 History
History: 1977 c. 173;
2001 a. 109.
940.07 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
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.
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]
940.08 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
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):
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)(am)
(am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
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 0.08.
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)(cm)
(cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
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 0.08.
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),
(am),
(b),
(c),
(cm), 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),
(am),
(b),
(c),
(cm), 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),
(am),
(b),
(c),
(cm), 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)(am)
(am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
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 0.08 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)(cm)
(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
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 0.08 or more.
940.09(1m)(a)(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of
sub. (1) (a),
(am), or
(b); any combination of
sub. (1) (a),
(am), or
(bm); any combination of
sub. (1) (c),
(cm), or
(d); any combination of
sub. (1) (c),
(cm), or
(e); any combination of
sub. (1g) (a),
(am), or
(b) or; any combination of
sub. (1g) (c),
(cm), or
(d) for acts arising out of the same incident or occurrence.
940.09(1m)(b)
(b) If a person is charged in an information with any of the combinations of crimes referred to in
par. (a), the crimes shall be joined under
s. 971.12. If the person is found guilty of more than one of the crimes so charged 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),
(am),
(b),
(bm),
(c),
(cm),
(d), and
(e) each require proof of a fact for conviction which the others do not require, and
sub. (1g) (a),
(am),
(b),
(c),
(cm), and
(d) each require proof of a fact for conviction which the others do not require.
940.09(2)(a)(a) In any action under this section, 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, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under
sub. (1) (b),
(bm),
(d) or
(e) or
(1g) (b) or
(d).
940.09(2)(b)
(b) In any action under
sub. (1) (am) or
(cm) or
(1g) (am) or
(cm) that is based on the defendant allegedly having a detectable amount of methamphetamine or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.
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;
2003 a. 30,
97.
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). Affirmed. State v. Fonte, 2005 WI 77,
281 Wis. 2d 654,
698 N.W.2d 594,
03-2097.
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
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),
94-2187.
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),
96-2830.
940.09 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is prospectively abrogated. State v. Picotte, 2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
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 G 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 G felony.
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 the 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
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),
98-2239.
940.10 Annotation
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
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 F 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 G 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;
2001 a. 109.
940.11 Annotation
Evidence that the defendant dragged a corpse behind a locked gate into a restricted, secluded wildlife area, then rolled the corpse into water at the bottom of a ditch was sufficient for a jury to conclude that the defendant hid a corpse in violation of this section. State v. Badker, 2001 WI App 27,
240 Wis. 2d 460,
623 N.W.2d 142,
99-2943.
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 H felony.
940.12 History
History: 1977 c. 173;
2001 a. 109.
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(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.
