Chapter 940

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) Except as provided in sub. (3), 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(3) (3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.

940.08 History History: 1977 c. 173; 1985 a. 293; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.

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.

940.08 Annotation In order to establish that the defendant was guilty of the crime of homicide by negligent handling of a dangerous weapon under sub. (1), the state had to prove three elements beyond a reasonable doubt: 1) the defendant operated or handled a dangerous weapon; 2) the defendant operated or handled a dangerous weapon in a manner constituting criminal negligence; and 3) the defendant’s operation or handling of a dangerous weapon in a manner constituting criminal negligence caused the death of another human being. State v. Langlois, 2018 WI 73, 382 Wis. 2d 414, 913 N.W.2d 812, 16-1409.

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) (1c) 

940.09(1c)(a) (a) Except as provided in par. (b), a person who violates sub. (1) is guilty of a Class D felony. Upon conviction, the court shall impose a bifurcated sentence under s. 973.01 and the term of confinement in prison portion of the bifurcated sentence shall be at least 5 years except that a court may impose a term of confinement that is less than 5 years if the court finds a compelling reason and places its reason on the record.

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). Upon conviction, the court shall impose a bifurcated sentence under s. 973.01 and the term of confinement in prison portion of the bifurcated sentence shall be at least 5 years except that a court may impose a term of confinement that is less than 5 years if the court finds a compelling reason and places its reason on the record.

940.09(1d) (1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.

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) (1m) 

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. 23.335 (23) (c) 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) (2) 

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(3) (3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 23.335 (12) (j), 30.686, 346.635 or 350.106.

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 Note NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).

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). See also 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 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), 94-2187.

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 Annotation This statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (1986).

940.09 Annotation Homicide By Intoxicated Use Statute. Sines. Wis. Law. Apr. 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 History History: 1987 a. 399; 1997 a. 295; 2001 a. 109.

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 A corporation may be subject to criminal liability under this section. State v. Richard Knutson, Inc., 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc., 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.

940.10 Annotation It is not a requirement for finding criminal negligence that the actor be specifically warned that the actor’s 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 History History: 1991 a. 205; 2001 a. 109; 2011 a. 268; 2013 a. 226; 2015 a. 147.

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.

940.15 940.15 Abortion.

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 constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.16 940.16 Partial-birth abortion.

940.16(1) (1) In this section:

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.