Chapter 939

939.74(2d)(c) (c) If, before the applicable time limitation under sub. (1) or (2) (am), (ar), (c), or (cm) for commencing prosecution of a felony under ch. 940 or 948, other than a felony specified in sub. (2) (a), expires, the state collects biological material that is evidence of the identity of the person who committed the felony, identifies a deoxyribonucleic acid profile from the biological material, and compares the deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons, the state may commence prosecution of the person who is the source of the biological material for the felony or a crime that is related to the felony or both within 12 months after comparison of the deoxyribonucleic acid profile relating to the felony results in a probable identification of the person or within the applicable time under sub. (1) or (2), whichever is latest.

939.74(2d)(e) (e) If, within 6 years after commission of a felony specified under sub. (2) (a), the state collects biological material that is evidence of the identity of the person who committed the felony, identifies a deoxyribonucleic acid profile from the biological material, and compares the deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons, the state may commence prosecution of the person who is the source of the biological material for a crime that is related to the felony within 12 months after comparison of the deoxyribonucleic acid profile relating to the felony results in a probable identification of the person or within the applicable time under sub. (1) or (2), whichever is latest.

939.74(3) (3) In computing the time limited by this section, the time during which the actor was not publicly a resident within this state or during which a prosecution against the actor for the same act was pending shall not be included. A prosecution is pending when a warrant or a summons has been issued, an indictment has been found, or an information has been filed.

939.74(4) (4) In computing the time limited by this section, the time during which an alleged victim under s. 940.22 (2) is unable to seek the issuance of a complaint under s. 968.02 due to the effects of the sexual contact or due to any threats, instructions or statements from the therapist shall not be included.

939.74 History History: 1981 c. 280; 1985 a. 275; 1987 a. 332, 380, 399, 403; 1989 a. 121; 1991 a. 269; 1993 a. 219, 227, 486; 1995 a. 456; 1997 a. 237; 2001 a. 16, 109; 2003 a. 196, 279, 326; 2005 a. 60, 276, 277; 2007 a. 80, 97, 116; 2009 a. 203; 2011 a. 271, 282; 2013 a. 165, 167; 2015 a. 121, 366; 2017 a. 128.

939.74 Annotation While courts have no duty to secure informed waivers of possible statutory defenses when accepting a guilty plea, under the unique facts of the case, the defendant was entitled to withdraw a guilty plea to a charge barred by the statute of limitations. State v. Pohlhammer, 82 Wis. 2d 1, 260 N.W.2d 678 (1978).

939.74 Annotation Sub. (3) tolls the running of statutes of limitation during the period in which a defendant is not a state resident and violates neither the privileges and immunities clause nor the equal protection clause of the U.S. Constitution. State v. Sher, 149 Wis. 2d 1, 437 N.W.2d 878 (1989).

939.74 Annotation A person is not “publicly a resident within this state” under sub. (3) when living outside the state but retaining state residence for voting and tax purposes. State v. Whitman, 160 Wis. 2d 260, 466 N.W.2d 193 (Ct. App. 1990).

939.74 Annotation An arrest warrant is issued for purposes of sub. (1) when it is signed by a judge with the intent that it be executed and leaves the possession of the judge. That the warrant is never executed is irrelevant. State v. Mueller, 201 Wis. 2d 121, 549 N.W.2d 455 (Ct. App. 1996), 93-3227.

939.74 Annotation The statute of limitations for a continuing offense does not run until the last act is done, which, viewed alone, is a crime. Otherwise, a prosecution for a felony offense must be commenced within six years. State v. Miller, 2002 WI App 197, 257 Wis. 2d. 124, 650 N.W.2d 850, 01-1406.

939.74 Annotation When the jury found the defendant guilty of having sexual contact with the minor victim during the period outside the statute of limitations, but also found that the victim was unable to seek the issuance of a complaint due to the effects of the sexual contact or due to statements or instructions by the defendant, the statute of limitations was tolled under sub. (4). The jury was required to agree upon a specific act committed within a specific time period but was not required to determine exactly when the agreed-upon offense was committed. When the date of the crime is not a material element of the offense charged, it need not be precisely alleged or determined. State v. Miller, 2002 WI App 197, 257 Wis. 2d. 124, 650 N.W.2d 850, 01-1406.

939.74 Annotation When a defendant is already in custody due to the defendant’s incarceration, the filing of a criminal complaint is sufficient to commence a prosecution. State v. Jennings, 2003 WI 10, 259 Wis. 2d 523, 657 N.W.2d 393, 01-0507. See also State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

939.74 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.

939.74 Annotation When sub. (2) (c) was created in 1987, it only applied prospectively. Subsequent amendments did not change this conclusion because they did not change the initial applicability of sub. (2) (c). Rather, the language in the subsequent amendments, which stated these amendments apply to offenses not yet barred, was clearly meant to apply to offenses that sub. (2) (c) had not already barred. State v. MacArthur, 2008 WI 72, 310 Wis. 2d 550, 750 N.W.2d 910, 06-1379.

939.74 Annotation The circuit judge decides the tolling issue under sub. (3) in a pretrial proceeding wherein the state must prove that the defendant was not a public resident by a preponderance of the evidence. State v. MacArthur, 2008 WI 72, 310 Wis. 2d 550, 750 N.W.2d 910, 06-1379.

939.74 Annotation The 36-year tolling of the statute of limitations under sub. (3) was not unconstitutional in this case. It did not violate the privileges and immunities, due process, or equal protection provisions of the U.S. Constitution. Sub. (3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals. State v. McGuire, 2010 WI 91, 328 Wis. 2d 289; 786 N.W.2d 227, 07-2711.

939.74 Annotation Sub. (2) (a) does not apply to a prosecution for attempted first-degree intentional homicide, which must instead be commenced within six years in accordance with sub. (1). State v. Larson, 2011 WI App 106, 336 Wis. 2d 419, 801 N.W.2d 343, 10-1666.

939.74 Annotation Sub. (2) (b) does not impose a requirement on the aggrieved party to exercise reasonable diligence in discovering the theft or loss. The one-year extension period in sub. (2) (b) begins to run only when the aggrieved party actually discovers the loss, not when it should have discovered the loss. State v. Simmelink, 2014 WI App 102, 357 Wis. 2d 430, 855 N.W.2d 437, 13-2491.

939.74 Annotation When an offense is a continuing offense, the statute of limitations does not begin to run until the last act is done that viewed by itself is a crime. Reading ss. 943.20 (1) (a) and 971.36 (3) (a) and (4) together, multiple acts of theft occurring over a period of time may, in certain circumstances, constitute one continuous offense that is not complete until the last act is completed. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

939.74 Annotation The statute of limitations is not tolled under sub. (3) by a municipal ticket. Municipal offenses have a separate statute of limitations and are not contemplated in the criminal statute of limitations. State v. Kollross, 2019 WI App 30, 388 Wis. 2d 135, 931 N.W.2d 263, 18-0931.

939.74 Annotation The Perils of Plain Language: Statute of Limitations for Child Sexual Assault Defendants. Flynn. Wis. Law. Mar. 2009.

939.75 939.75 Death or harm to an unborn child.

939.75(1) (1) In this section and ss. 939.24 (1), 939.25 (1), 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e), “unborn child” means any individual of the human species from fertilization until birth that is gestating inside a woman.

939.75(2) (2) 

939.75(2)(a) (a) In this subsection, “induced abortion” means the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.

939.75(2)(b) (b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:

939.75(2)(b)1. 1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04, 940.13, 940.15 and 940.16 to an induced abortion.

939.75(2)(b)2. 2. An act that is committed in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a physician licensed under ch. 448.

939.75(2)(b)2h. 2h. An act by any health care provider, as defined in s. 155.01 (7), that is in accordance with a pregnant woman’s power of attorney for health care instrument under ch. 155 or in accordance with a decision of a health care agent who is acting under a pregnant woman’s power of attorney for health care instrument under ch. 155.

939.75(2)(b)3. 3. An act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.

939.75(2)(b)4. 4. The prescription, dispensation or administration by any person lawfully authorized to do so and the use by a woman of any medicine, drug or device that is used as a method of birth control or is intended to prevent pregnancy.

939.75(3) (3) When the existence of an exception under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the exception do not exist in order to sustain a finding of guilt under s. 940.01 (1) (b), 940.02 (1m), 940.05 (2g), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) or (1g) (c), (cm), or (d), 940.10 (2), 940.195, 940.23 (1) (b) or (2) (b), 940.24 (2) or 940.25 (1) (c) to (e).

939.75 History History: 1997 a. 295; 2001 a. 109; 2003 a. 97.

939.75 Annotation Defendant’s conviction under s. 940.09 (1) (c) for causing the death of an unborn child by intoxicated use of a motor vehicle was not unconstitutional. The court rejected the assertion that sub. (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.