Chapter 946

946.31 Annotation An arbitrator selected from a list provided by the Wisconsin Employment Relations Commission is authorized by s. 111.10 to arbitrate as provided in ch. 298 [now ch. 788] and so is “authorized by statute” within the meaning of sub. (1) (d). Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218 (1978).

946.31 Annotation Perjury consists of a false statement that the defendant knew was false, was made under oath in a proceeding before a judge, and was material to the proceeding. Materiality is determined by whether the trial court could have relied on the testimony in making a decision, not on whether it actually did. State v. Munz, 198 Wis. 2d 379, 541 N.W.2d 821 (Ct. App. 1995), 95-0635.

946.31 Annotation A defendant may be charged with multiple counts of perjury based on testimony given in the same proceeding when each charge requires proof of an additional fact that the others do not. State v. Warren, 229 Wis. 2d 172, 599 N.W.2d 431 (Ct. App. 1999), 99-0129.

946.31 Annotation Issue preclusion does not bar the prosecution for perjury of a defendant who was tried and acquitted on a single issue when newly discovered evidence suggests that the defendant falsely testified on the issue. The state must show that: 1) the evidence came to the state’s attention after trial; 2) the state was not negligent in failing to discover the evidence; 3) the evidence is material to the issue; and 4) the evidence is not merely cumulative. State v. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, 98-3519.

946.31 Annotation Perjury Prosecutions After Acquittals: The Evils of False Testimony Balanced Against the Sanctity of Determinations of Innocence. Shellenberger. 71 MLR 703 (1988).

946.32 946.32 False swearing.

946.32(1) (1) Whoever does either of the following is guilty of a Class H felony:

946.32(1)(a) (a) Under oath or affirmation or upon signing a statement pursuant to s. 887.015 makes or subscribes a false statement which he or she does not believe is true, when such oath, affirmation, or statement is authorized or required by law or is required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action.

946.32(1)(b) (b) Makes or subscribes 2 inconsistent statements under oath or affirmation or upon signing a statement pursuant to s. 887.015 in regard to any matter respecting which an oath, affirmation, or statement is, in each case, authorized or required by law or required by any public officer or governmental agency as a prerequisite to such officer or agency taking some official action, under circumstances which demonstrate that the witness or subscriber knew at least one of the statements to be false when made. The period of limitations within which prosecution may be commenced runs from the time of the first statement.

946.32(2) (2) Whoever under oath or affirmation or upon signing a statement pursuant to s. 887.015 makes or subscribes a false statement which the person does not believe is true is guilty of a Class A misdemeanor.

946.32 History History: 1977 c. 173; 1993 a. 486; 2001 a. 109; 2009 a. 166.

946.32 Annotation This section applies to oral statements. The mere fact that a statement is permitted by law does not mean it is “authorized by law” within meaning of sub. (1) (a). State v. Devitt, 82 Wis. 2d 262, 262 N.W.2d 73 (1978).

946.32 Annotation The reference to the statute of limitations in sub. (1) (b) does not make it an element of the offense. The statute of limitations is an affirmative defense and is subject to tolling under s. 939.74. State v. Slaughter, 200 Wis. 2d 190, 546 N.W.2d 490 (Ct. App. 1996), 95-0141.

946.32 Annotation What is to be “authorized or required” under sub. (1) (b) is the oath itself, not the matter respecting which the oath is taken. State v. Slaughter, 200 Wis. 2d 190, 546 N.W.2d 490 (Ct. App. 1996), 95-0141.

subch. IV of ch. 946 SUBCHAPTER IV

INTERFERENCE WITH LAW ENFORCEMENT

946.40 946.40 Refusing to aid officer.

946.40(1) (1) Whoever, without reasonable excuse, refuses or fails, upon command, to aid any person known by the person to be a peace officer is guilty of a Class C misdemeanor.

946.40(2) (2) This section does not apply if under the circumstances the officer was not authorized to command such assistance.

946.40 History History: 1977 c. 173.

946.40 Annotation Under s. 343.305, hospital personnel must administer a blood alcohol test and report the results at the request of an officer, subject to the penalty under this section. 68 Atty. Gen. 209.

946.40 Annotation In certain circumstances, a peace officer may command medical staff at a hospital or clinic to gather evidence from a sexual assault victim. 72 Atty. Gen. 107.

946.41 946.41 Resisting or obstructing officer.

946.41(1) (1) Except as provided in subs. (2m) and (2r), whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority is guilty of a Class A misdemeanor.

946.41(2) (2) In this section:

946.41(2)(a) (a) “Obstructs” includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process.

946.41(2)(b) (b) “Officer” means a peace officer or other public officer or public employee having the authority by virtue of the officer’s or employee’s office or employment to take another into custody.

946.41(2)(c) (c) “Soft tissue injury” means an injury that requires medical attention to a tissue that connects, supports, or surrounds other structures and organs of the body and includes tendons, ligaments, fascia, skin, fibrous tissues, fat, synovial membranes, muscles, nerves, and blood vessels.

946.41(2m) (2m) Whoever violates sub. (1) under all of the following circumstances is guilty of a Class H felony:

946.41(2m)(a) (a) The violator gives false information or places physical evidence with intent to mislead an officer.

946.41(2m)(b) (b) At a criminal trial, the trier of fact considers the false information or physical evidence.

946.41(2m)(c) (c) The trial results in the conviction of an innocent person.

946.41(2r) (2r) Whoever violates sub. (1) and causes substantial bodily harm or a soft tissue injury to an officer is guilty of a Class H felony.

946.41(2t) (2t) Whoever violates sub. (1) and causes great bodily harm to an officer is guilty of a Class G felony.

946.41(3) (3) Whoever by violating this section hinders, delays or prevents an officer from properly serving or executing any summons or civil process, is civilly liable to the person injured for any actual loss caused thereby and to the officer or the officer’s superior for any damages adjudged against either of them by reason thereof.

946.41 History History: 1977 c. 173; 1983 a. 189; 1989 a. 121; 1993 a. 486; 2001 a. 109; 2009 a. 251; 2011 a. 74.

946.41 Annotation The state must prove that the accused knew that the officer was acting in an official capacity and knew that the officer was acting with lawful authority when the accused allegedly resisted or obstructed the officer. State v. Lossman, 118 Wis. 2d 526, 348 N.W.2d 159 (1984).

946.41 Annotation Knowingly providing false information with intent to mislead is obstruction as a matter of law. State v. Caldwell, 154 Wis. 2d 683, 454 N.W.2d 13 (Ct. App. 1990).

946.41 Annotation No law allows officers to arrest for obstruction on a person’s refusal to give the person’s name. Mere silence is insufficient to constitute obstruction. Henes v. Morrissey, 194 Wis. 2d 338, 533 N.W.2d 802 (1995).

946.41 Annotation Fleeing and hiding from an officer may constitute obstructing. State v. Grobstick, 200 Wis. 2d 242, 546 N.W.2d 187 (Ct. App. 1996), 94-1045.

946.41 Annotation There is no exculpatory denial exception under this section. The statute criminalizes all false statements knowingly made and with intent to mislead the police. The state should have sound reasons for believing that a defendant knowingly made false statements with intent to mislead the police and not out of a good-faith attempt to defend against accusations of a crime. The latter can never include the former. State v. Reed, 2005 WI 53, 280 Wis. 2d 68, 695 N.W.2d 315, 03-1781.

946.41 Annotation “Lawful authority,” as that term is used in sub. (1), requires that police conduct be in compliance with both the federal and state constitutions, in addition to any applicable statutes. State v. Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187, 07-2095.

946.415 946.415 Failure to comply with officer’s attempt to take person into custody.

946.415(1) (1) In this section, “officer” has the meaning given in s. 946.41 (2) (b).

946.415(2) (2) Whoever intentionally does all of the following is guilty of a Class I felony:

946.415(2)(a) (a) Refuses to comply with an officer’s lawful attempt to take him or her into custody.

946.415(2)(b) (b) Retreats or remains in a building or place and, through action or threat, attempts to prevent the officer from taking him or her into custody.

946.415(2)(c) (c) While acting under pars. (a) and (b), remains or becomes armed with a dangerous weapon or threatens to use a dangerous weapon regardless of whether he or she has a dangerous weapon.

946.415 History History: 1995 a. 93; 2001 a. 109.

946.415 Annotation This section delineates one crime: a suspect’s armed, physical refusal to be taken into custody. It can be committed by action or threat, which are alternative ways of threatening an officer to avoid being taken into custody. A jury instruction requiring unanimity on which occurred is not required. State v. Koeppen, 2000 WI App 121, 237 Wis. 2d 418, 614 N.W.2d 530, 99-0418.

946.42 946.42 Escape.

946.42(1) (1) In this section:

946.42(1)(a) (a)

946.42(1)(a)1. 1. “Custody” includes without limitation all of the following:

946.42(1)(a)1.a. a. Actual custody of an institution, including a juvenile correctional facility, as defined in s. 938.02 (10p), a secured residential care center for children and youth, as defined in s. 938.02 (15g), a juvenile detention facility, as defined in s. 938.02 (10r), a Type 2 residential care center for children and youth, as defined in s. 938.02 (19r), a facility used for the detention of persons detained under s. 980.04 (1), a facility specified in s. 980.065, or a juvenile portion of a county jail.

946.42(1)(a)1.b. b. Actual custody of a peace officer or institution guard.

946.42(1)(a)1.bm. bm. Actual custody or authorized physical control of a correctional officer.

946.42(1)(a)1.c. c. Actual custody or authorized physical control of a probationer, parolee, or person on extended supervision by the department of corrections.

946.42(1)(a)1.e. e. Constructive custody of persons placed on supervised release under ch. 980.

946.42(1)(a)1.f. f. Constructive custody of prisoners and juveniles subject to an order under s. 938.183, 938.34 (4d), (4h), or (4m), or 938.357 (4) or (5) (e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile, or otherwise.

946.42(1)(a)1.g. g. Custody of the sheriff of the county to which the prisoner was transferred after conviction.

946.42(1)(a)1.h. h. Custody of a person subject to a confinement order under s. 973.09 (4).

946.42(1)(a)2. 2. “Custody” does not include the constructive custody of a probationer, parolee, or person on extended supervision by the department of corrections or a probation, extended supervision, or parole agent or, subject to s. 938.533 (3) (a), the constructive custody of a person who has been released to community supervision or aftercare supervision under ch. 938.

946.42(1)(b) (b) “Escape” means to leave in any manner without lawful permission or authority.

946.42(1)(c) (c) “Legal arrest” includes without limitation an arrest pursuant to process fair on its face notwithstanding insubstantial irregularities and also includes taking a juvenile into custody under s. 938.19.

946.42(2) (2) A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class A misdemeanor:

946.42(2)(a) (a) Pursuant to a legal arrest for or lawfully charged with or convicted of a violation of a statutory traffic regulation, a statutory offense for which the penalty is a forfeiture or a municipal ordinance.

946.42(2)(b) (b) Lawfully taken into custody under s. 938.19 for a violation of or lawfully alleged or adjudged under ch. 938 to have violated a statutory traffic regulation, a statutory provision for which the penalty is a forfeiture or a municipal ordinance.

946.42(2)(c) (c) Pursuant to a civil arrest or body execution.

946.42(2m) (2m) A person who is in the custody of a probation, parole, or extended supervision agent, or a correctional officer, based on an allegation or a finding that the person violated the rules or conditions of probation, parole, or extended supervision and who intentionally escapes from custody is guilty of a Class H felony.

946.42(3) (3) A person in custody who intentionally escapes from custody under any of the following circumstances is guilty of a Class H felony:

946.42(3)(a) (a) Pursuant to a legal arrest for, lawfully charged with or convicted of or sentenced for a crime.

946.42(3)(b) (b) Lawfully taken into custody under s. 938.19 for or lawfully alleged or adjudged under ch. 938 to be delinquent on the basis of a violation of a criminal law.

946.42(3)(c) (c) Subject to a disposition under s. 938.34 (4d), (4h), or (4m), to a placement under s. 938.357 (4) or 938.533 (3) (a), or to community supervision or aftercare revocation under s. 938.357 (5) (e).

946.42(3)(e) (e) In custody under the circumstances described in sub. (2) and leaves the state to avoid apprehension. Leaving the state and failing to return is prima facie evidence of intent to avoid apprehension.

946.42(3)(f) (f) Pursuant to a legal arrest as a fugitive from justice in another state.

946.42(3)(g) (g) Committed to the department of health services under ch. 971 or 975.

946.42(3m) (3m) A person who intentionally escapes from custody under any of the following circumstances is guilty of a Class F felony:

946.42(3m)(a) (a) While subject to a detention order under s. 980.04 (1) or a custody order under s. 980.04 (3).

946.42(3m)(b) (b) While subject to an order issued under s. 980.06 committing the person to custody of the department of health services, regardless of whether the person is placed in institutional care or on supervised release.

946.42(4) (4) If a person is convicted of an escape under this section, the maximum term of imprisonment for the escape may be increased by not more than 5 years if an individual who had custody of the person who escaped is injured during the course of the escape.

946.42 History History: 1971 c. 164 s. 89; 1975 c. 39; 1977 c. 173, 312, 354, 418; 1985 a. 320; 1987 a. 27, 238, 352; 1987 a. 403 ss. 238, 239, 256; 1989 a. 31; 1993 a. 16, 377, 385, 491; 1995 a. 27 ss. 7233m, 7233p, 9126 (19); 1995 a. 77, 154, 352, 390; 1997 a. 35, 283; 1999 a. 9; 2001 a. 109; 2005 a. 344, 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97, 226; 2013 a. 334; 2015 a. 55.

946.42 Annotation There is no denial of equal protection in the punishment under sub. (3) (d) [now sub. (3) (g)] of persons committed under the sex crimes law when persons civilly committed are not subject to the same statute. State v. Neutz, 69 Wis. 2d 292, 230 N.W.2d 806 (1975).

946.42 Annotation A defendant’s escape under the work-release statute was an escape under sub. (3). Brown v. State, 73 Wis. 2d 703, 245 N.W.2d 670 (1976).

946.42 Annotation The sentence for an escape conviction may be consecutive to a sex crime commitment. State v. Kruse, 101 Wis. 2d 387, 305 N.W.2d 85 (1981).

946.42 Annotation It is not necessary to leave the physical boundaries of an institution to complete an act of escape. State v. Sugden, 143 Wis. 2d 728, 422 N.W.2d 624 (1988).

946.42 Annotation Under sub. (5) (b) [now sub. (1) (a)], an individual is “in custody” once freedom of movement is restricted; one lawfully arrested may not leave without permission. State v. Adams, 152 Wis. 2d 68, 447 N.W.2d 90 (Ct. App. 1989).

946.42 Annotation A person can be “in custody” without being under “legal arrest,” but a person cannot be under “legal arrest” without being “in custody.” State v. Hoffman, 163 Wis. 2d 752, 472 N.W.2d 558 (Ct. App. 1991).

946.42 Annotation A traffic regulation under sub. (2) (a) does not include any offense punishable as a crime. State v. Beasley, 165 Wis. 2d 97, 477 N.W.2d 57 (Ct. App. 1991).