Chapter 940

940.25(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.

940.25 History History: 1977 c. 193, 272; 1981 c. 20, 184; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 277; 1993 a. 317, 428, 478; 1995 a. 425, 436; 1997 a. 237, 295; 1999 a. 32, 109, 186; 2001 a. 16, 109; 2003 a. 30, 97; 2005 a. 253; 2009 a. 100; 2015 a. 170.

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

940.25 Annotation The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of sub. (1) (a) and (b). State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983).

940.25 Annotation The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence was not relevant to a defense under sub. (2). State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (Ct. App. 1990).

940.25 Annotation The offense under sub. (1) (am) has two elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in the defendant’s blood; and 2) the defendant’s operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieve the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature’s enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.

940.25 Annotation The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that the defendant is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.

940.25 Annotation “Materially impaired” as used in the definition of “under the influence of an intoxicant” in s. 939.22 (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court’s response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.

940.285 940.285 Abuse of individuals at risk.

940.285(1) (1) Definitions. In this section:

940.285(1)(ag) (ag) “Abuse” means any of the following:

940.285(1)(ag)1. 1. Physical abuse, as defined in s. 46.90 (1) (fg).

940.285(1)(ag)2. 2. Emotional abuse, as defined in s. 46.90 (1) (cm).

940.285(1)(ag)3. 3. Sexual abuse, as defined in s. 46.90 (1) (gd).

940.285(1)(ag)4. 4. Treatment without consent, as defined in s. 46.90 (1) (h).

940.285(1)(ag)5. 5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).

940.285(1)(ag)6. 6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.

940.285(1)(am) (am) “Adult at risk” has the meaning given in s. 55.01 (1e).

940.285(1)(dc) (dc) “Elder adult at risk” has the meaning given in s. 46.90 (1) (br).

940.285(1)(dg) (dg) “Individual at risk” means an elder adult at risk or an adult at risk.

940.285(1)(dm) (dm) “Recklessly” means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.

940.285(1m) (1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.

940.285(2) (2) Abuse; penalties.

940.285(2)(a) (a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):

940.285(2)(a)1. 1. Intentionally subjects an individual at risk to abuse.

940.285(2)(a)2. 2. Recklessly subjects an individual at risk to abuse.

940.285(2)(a)3. 3. Negligently subjects an individual at risk to abuse.

940.285(2)(b) (b)

940.285(2)(b)1g. 1g. Any person violating par. (a) 1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death is guilty of a Class D felony.

940.285(2)(b)1m. 1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.

940.285(2)(b)1r. 1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.

940.285(2)(b)2. 2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.

940.285(2)(b)4. 4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.

940.285(2)(b)5. 5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.

940.285 History History: 1985 a. 306; 1993 a. 445; 1997 a. 180; 2001 a. 109; 2005 a. 264, 388; 2007 a. 45.

940.29 940.29 Abuse of residents of penal facilities. Any person in charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class I felony.

940.29 History History: 1975 c. 119; 1975 c. 413 s. 18; 1977 c. 173; 1979 c. 124; 1981 c. 20; 1987 a. 161 ss. 12, 13m; 1987 a. 332; 1993 a. 445; 2001 a. 109.

940.291 940.291 Law enforcement officer; failure to render aid.

940.291(1) (1) Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive. A violation for intentionally failing to render first aid under this subsection applies only to first aid which the officer has the knowledge and ability to render.

940.291(2) (2) Any peace officer who knowingly permits another person to violate sub. (1), while acting in the course of employment or under the authority of employment, is guilty of a Class A misdemeanor.

940.291 History History: 1983 a. 27.

940.295 940.295 Abuse and neglect of patients and residents.

940.295(1) (1) Definitions. In this section:

940.295(1)(ad) (ad) “Abuse” has the meaning given in s. 46.90 (1) (a).

940.295(1)(ag) (ag) “Adult at risk” has the meaning given in s. 55.01 (1e).

940.295(1)(am) (am) “Adult family home” has the meaning given in s. 50.01 (1).

940.295(1)(b) (b) “Bodily harm” has the meaning given in s. 46.90 (1) (aj).

940.295(1)(c) (c) “Community-based residential facility” has the meaning given in s. 50.01 (1g).

940.295(1)(cr) (cr) “Elder adult at risk” has the meaning given in s. 46.90 (1) (br).

940.295(1)(d) (d) “Foster home” has the meaning given in s. 48.02 (6).

940.295(1)(e) (e) “Great bodily harm” has the meaning given in s. 939.22 (14).

940.295(1)(f) (f) “Group home” has the meaning given in s. 48.02 (7).

940.295(1)(g) (g) “Home health agency” has the meaning given in s. 50.49 (1) (a).

940.295(1)(h) (h) “Hospice” has the meaning given in s. 50.90 (1).

940.295(1)(hr) (hr) “Individual at risk” means an elder adult at risk or an adult at risk.

940.295(1)(i) (i) “Inpatient health care facility” has the meaning given in s. 50.135 (1).

940.295(1)(k) (k) “Neglect” has the meaning given in s. 46.90 (1) (f).

940.295(1)(km) (km) “Negligence” means an act, omission, or course of conduct that the actor should realize creates a substantial and unreasonable risk of death, great bodily harm, or bodily harm to another person.

940.295(1)(L) (L) “Patient” means any person who does any of the following:

940.295(1)(L)1. 1. Receives care or treatment from a facility or program under sub. (2), from an employee of a facility or program or from a person providing services under contract with a facility or program.

940.295(1)(L)2. 2. Arrives at a facility or program under sub. (2) for the purpose of receiving care or treatment from a facility or program under sub. (2), from an employee of a facility or program under sub. (2), or from a person providing services under contract with a facility or program under sub. (2).

940.295(1)(o) (o) “Recklessly” means conduct that creates a situation of unreasonable risk of death or harm to and demonstrates a conscious disregard for the safety of the patient or resident.

940.295(1)(p) (p) “Resident” means any person who resides in a facility under sub. (2).

940.295(1)(r) (r) “State treatment facility” has the meaning given in s. 51.01 (15).

940.295(1)(s) (s) “Treatment facility” has the meaning given in s. 51.01 (19).

940.295(2) (2) Applicability. This section applies to any of the following types of facilities or programs:

940.295(2)(a) (a) An adult day care center.

940.295(2)(b) (b) An adult family home.

940.295(2)(c) (c) A community-based residential facility.

940.295(2)(d) (d) A foster home.

940.295(2)(e) (e) A group home.

940.295(2)(f) (f) A home health agency.

940.295(2)(g) (g) A hospice.

940.295(2)(h) (h) An inpatient health care facility.

940.295(2)(i) (i) A program under s. 51.42 (2).

940.295(2)(j) (j) The Wisconsin Educational Services Program for the Deaf and Hard of Hearing under s. 115.52 and the Wisconsin Center for the Blind and Visually Impaired under s. 115.525.

940.295(2)(k) (k) A state treatment facility.

940.295(2)(L) (L) A treatment facility.

940.295(2)(m) (m) A residential care center for children and youth operated by a child welfare agency licensed under s. 48.60 or an institution operated by a public agency for the care of neglected, dependent, or delinquent children.

940.295(2)(n) (n) Any other health facility or care-related facility or home, whether publicly or privately owned.

940.295(3) (3) Abuse and neglect; penalties.

940.295(3)(a) (a) Any person in charge of or employed in any facility or program under sub. (2) who does any of the following, or who knowingly permits another person to do so, may be penalized under par. (b):

940.295(3)(a)1. 1. Intentionally abuses or intentionally neglects a patient or resident.

940.295(3)(a)2. 2. Recklessly abuses or recklessly neglects a patient or resident.

940.295(3)(a)3. 3. Except as provided in par. (am), abuses, with negligence, or neglects a patient or a resident.

940.295(3)(am) (am) Paragraph (a) 3. does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.

940.295(3)(b) (b)

940.295(3)(b)1g. 1g. Any person violating par. (a) 1. or 2. under circumstances that cause death to an individual at risk is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death to an individual at risk is guilty of a Class D felony.

940.295(3)(b)1m. 1m. Any person violating par. (a) under circumstances that cause great bodily harm to an individual at risk is guilty of a Class E felony.