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;
2009 a. 100;
2015 a. 170;
2015 a. 197 s.
51;
2019 a. 31.
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
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 Annotation
Defendant's conviction under sub. (1) (c) for causing the death of an unborn child was not unconstitutional. The court rejected the assertion that s. 939.75 (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson,
2012 WI App 101,
344 Wis. 2d 126,
822 N.W.2d 484,
11-1399.
940.09 Annotation
When a blood test reveals the presence of a restricted controlled substance, homicide by intoxicated use of a vehicle is a type of strict liability offense; the state only need prove that the restricted controlled substance was present and the defendant caused the death of another by using a motor vehicle. Though generally structured as a strict liability offense, sub. (2) (a) provides a defense for when there is an intervening cause between the intoxicated operation of the automobile and the death of an individual. A seizure can, as a general matter, be a defense to the charge. State v. Raczka,
2018 WI App 3,
379 Wis. 2d 720,
906 N.W.2d 722,
16-1057.
940.09 Annotation
In this case, the defendant had a history of seizures and failed to take his seizure medication as prescribed. If failing to take the medication was negligent and this negligence caused the seizure and the crash, then the statute offers no defense. However, whether the defendant's failure to take his medication was a failure to exercise due care is a question of fact; it cannot be presumed as a matter of law. State v. Raczka,
2018 WI App 3,
379 Wis. 2d 720,
906 N.W.2d 722,
16-1057.
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 or notwithstanding s.
946.90 (2) or
(3),
946.91 (2),
946.92, or
946.93 (2) or
(3) with intent to collect benefits under the assistance program for families with dependent children administered under ss.
49.141 to
49.161, the Medical Assistance program administered under subch.
IV of ch. 49, or the food stamp program, as defined in s.
49.79 (1) (c), is guilty of a Class F felony.
940.11(3)
(3) A person may not be subject to prosecution under both this section and s.
946.47 or under both this section and s.
948.23 (2) for his or her acts regarding the same corpse.
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.
940.15(2)
(2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman's attending physician, is guilty of a Class I felony.
940.15(3)
(3) Subsection
(2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.
940.15(4)
(4) Any abortion performed under sub.
(3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman's attending physician, shall be performed in a hospital on an inpatient basis.
940.15(5)
(5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class I felony.
940.15(6)
(6) Any physician who intentionally performs an abortion under sub.
(3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class I felony.
940.15(7)
(7) Subsections
(2) to
(6) and s.
939.05,
939.30 or
939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.
940.15 History
History: 1985 a. 56;
2001 a. 109.
940.15 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).
940.16
940.16
Partial-birth abortion. 940.16(1)(a)
(a) “Child" means a human being from the time of fertilization until it is completely delivered from a pregnant woman.
940.16(1)(b)
(b) “Partial-birth abortion" means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.
940.16(2)
(2) Except as provided in sub.
(3), whoever intentionally performs a partial-birth abortion is guilty of a Class A felony.
940.16(3)
(3) Subsection
(2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.
940.16 History
History: 1997 a. 219.
940.16 Annotation
A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart,
530 U.S. 949,
147 L. Ed. 2d 743 (2000).
940.16 Annotation
Enforcement of this section is enjoined under
Carhart. Hope Clinic v. Ryan,
249 F.3d 603 (2001).
BODILY SECURITY
940.19
940.19
Battery; substantial battery; aggravated battery. 940.19(1)(1)
Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.
940.19(2)
(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony.
940.19(4)
(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.
940.19(5)
(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.
940.19(6)
(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises:
940.19(6)(a)
(a) If the person harmed is 62 years of age or older; or
940.19(6)(b)
(b) If the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.
940.19 Annotation
Under the “elements only" test, offenses under subsections that require proof of nonconsent are not lesser included offenses of offenses under subsections for which proof of nonconsent is not required. State v. Richards,
123 Wis. 2d 1,
365 N.W.2d 7 (1985).
940.19 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).
940.19 Annotation
The act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs,
230 Wis. 2d 1,
601 N.W.2d 653 (Ct. App. 1999),
98-1811.
940.19 Annotation
Section 941.20 (1), 1st-degree recklessly endangering safety, is not a lesser included offense of sub. (5), aggravated battery. State v. Dibble,
2002 WI App 219, 257 Wis. 2d. 274,
650 N.W.2d 908,
02-0538.
940.195
940.195
Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child. 940.195(1)(1)
Whoever causes bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class A misdemeanor.
940.195(2)
(2) Whoever causes substantial bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class I felony.
940.195(4)
(4) Whoever causes great bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class H felony.
940.195(5)
(5) Whoever causes great bodily harm to an unborn child by an act done with intent to cause great bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class E felony.
940.195(6)
(6) Whoever intentionally causes bodily harm to an unborn child by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony.
940.195 History
History: 1997 a. 295;
2001 a. 109.
940.20
940.20
Battery: special circumstances. 940.20(1)(1)
Battery by prisoners. Any prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally causes bodily harm or a soft tissue injury, as defined in s.
946.41 (2) (c), to an officer, employee, visitor, or another inmate of such prison or institution, without his or her consent, is guilty of a Class H felony.
940.20(1g)
(1g)
Battery by certain committed persons. Any person placed in a facility under s.
980.065 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony.
940.20(1m)
(1m)
Battery by persons subject to certain injunctions. 940.20(1m)(a)(a) Any person who is subject to an injunction under s.
813.12 or a tribal injunction filed under s.
813.128 (3g) and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.
940.20(1m)(b)
(b) Any person who is subject to an injunction under s.
813.125 and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.
940.20(2)
(2)
Battery to fire fighters and commission wardens. Whoever intentionally causes bodily harm to a fire fighter, as defined in s.
102.475 (8) (b), or to a commission warden, acting in an official capacity and the person knows or has reason to know that the victim is a fire fighter or commission warden, by an act done without the consent of the person so injured, is guilty of a Class H felony.
940.20(2m)
(2m)
Battery to probation, extended supervision and parole agents, community supervision agents, and aftercare agents. 940.20(2m)(a)1.
1. “Aftercare agent" means any person authorized by the department of corrections to exercise control over a juvenile on aftercare.
940.20(2m)(a)1m.
1m. “Community supervision agent" means any person authorized by the department of corrections to exercise control over a juvenile on community supervision.
