History: 1987 a. 171
Operating vehicle without owner's consent. 943.23(1)(a)
“Drive" means the exercise of physical control over the speed and direction of a vehicle while it is in motion.
“Major part of a vehicle" means any of the following:
Each door allowing entrance to or egress from the passenger compartment.
The frame or, in the case of a unitized body, the supporting structure which serves as the frame.
“Operate" includes the physical manipulation or activation of any of the controls of a vehicle necessary to put it in motion.
Whoever, while possessing a dangerous weapon and by the use of, or the threat of the use of, force or the weapon against another, intentionally takes any vehicle without the consent of the owner is guilty of a Class C felony.
Whoever, by the use of force against another or by the threat of the use of force against another, intentionally takes any vehicle without the consent of the owner is guilty of a Class E felony.
Except as provided in sub. (3m)
, whoever intentionally takes and drives any vehicle without the consent of the owner is guilty of the following:
For a 2nd or subsequent offense, a Class F felony.
Except as provided in sub. (3m)
, whoever intentionally takes and drives any commercial motor vehicle without the consent of the owner is guilty of a Class G felony.
Except as provided in sub. (3m)
, whoever intentionally drives or operates any vehicle without the consent of the owner is guilty of the following:
For a 2nd or subsequent offense, a Class G felony.
Except as provided in sub. (3m)
, whoever intentionally drives or operates any commercial motor vehicle without the consent of the owner is guilty of a Class H felony.
It is an affirmative defense to a prosecution for a violation of sub. (2)
if the defendant abandoned the vehicle without damage within 24 hours after the vehicle was taken from the possession of the owner. An affirmative defense under this subsection mitigates the offense to a Class A misdemeanor. A defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.
Whoever knows that the owner does not consent to the driving or operation of a vehicle and intentionally accompanies, as a passenger in the vehicle, a person while he or she violates sub. (1g)
, or (3m)
is guilty of a Class A misdemeanor.
Whoever intentionally removes a major part of a vehicle without the consent of the owner is guilty of a Class I felony. Whoever intentionally removes any other part or component of a vehicle without the consent of the owner is guilty of a Class A misdemeanor.
In addition to the other penalties provided for violation of this section, a judge shall require a violator of sub. (2g)
to pay restitution for any damage he or she causes to a commercial motor vehicle to or on behalf of a victim, and a judge may require any other violator to pay restitution to or on behalf of a victim, regardless of whether the violator is placed on probation under s. 973.09
. If restitution is ordered, the court shall consider the financial resources and future ability of the violator to pay and shall determine the method of payment. Upon the application of any interested party, the court may schedule and hold an evidentiary hearing to determine the value of the victim's pecuniary loss resulting from the offense.
To sustain a conviction for operating a car without the owner's consent, it is not necessary that the driver be the person who actually took the car. Edwards v. State, 46 Wis. 2d 249
, 174 N.W.2d 269
Leaving a vehicle because of the threat of imminent arrest is involuntary relinquishment, not abandonment under sub. (2). State v. Olson, 106 Wis. 2d 572
, 317 N.W.2d 448
Restitution under sub. (6) (b) is analyzed in the same manner as restitution under the general statute, s. 973.20. A defendant is entitled to a hearing, although it may be informal, to challenge the existence of damage to the victim, as well as the amount of damage. If damage results from a criminal episode in which the defendant played any part, the defendant is jointly and severally liable in restitution for the amount of damages. State v. Madlock, 230 Wis. 2d 324
, 602 N.W.2d 104
(Ct. App. 1999), 98-2718
Sub. (1r), 1999 stats., is applicable if the taking of the vehicle is a substantial factor in the victim's death. A substantial factor is not only the primary or immediate cause, but includes other significant factors. State v. Miller, 231 Wis. 2d 447
, 605 N.W.2d 567
(Ct. App. 1999), 98-2089
Separate prosecutions for a carjacking in violation of sub. (1g), which occurred on one day, and operating the same car without the owner's consent in violation of sub. (3), which occurred on the next day, did not violate s. 939.66 (2r) or the constitutional protection against double jeopardy. State v. McKinnie, 2002 WI App 82
, 252 Wis. 2d 172
, 642 N.W.2d 617
Although the standard jury instruction provides that “[a] firearm is a weapon that acts by force of gunpowder," the state was not required to present evidence that a firearm operated by force of gunpowder. Essentially, both the supreme court and court of appeals have taken judicial notice of the fact that it is common knowledge that the guns at issue in previous cases operated as dangerous weapons because they used gunpowder to fire projectiles. State v. Powell, 2012 WI App 33
, 340 Wis. 2d 423
,812 N.W.2d 520
Issue of worthless check. 943.24(1)(1)
Whoever issues any check or other order for the payment of not more than $2,500 which, at the time of issuance, he or she intends shall not be paid is guilty of a Class A misdemeanor.
Whoever issues any single check or other order for the payment of more than $2,500 or whoever within a 90-day period issues more than one check or other order amounting in the aggregate to more than $2,500 which, at the time of issuance, the person intends shall not be paid is guilty of a Class I felony.
Any of the following is prima facie evidence that the person at the time he or she issued the check or other order for the payment of money, intended it should not be paid:
Proof that, at the time of issuance, the person did not have an account with the drawee; or
Proof that, at the time of issuance, the person did not have sufficient funds or credit with the drawee and that the person failed within 5 days after receiving written notice of nonpayment or dishonor to pay the check or other order, delivered by regular mail to either the person's last-known address or the address provided on the check or other order; or
Proof that, when presentment was made within a reasonable time, the person did not have sufficient funds or credit with the drawee and the person failed within 5 days after receiving written notice of nonpayment or dishonor to pay the check or other order, delivered by regular mail to either the person's last-known address or the address provided on the check or other order.
This section does not apply to a postdated check or to a check given for a past consideration, except a payroll check.
In addition to the other penalties provided for violation of this section, a judge may order a violator to pay restitution under s. 973.20
In actions concerning violations of ordinances in conformity with this section, a judge may order a violator to make restitution under s. 800.093
If the court orders restitution under pars. (a)
, any amount of restitution paid to the victim under one of those paragraphs reduces the amount the violator must pay in restitution to that victim under the other paragraph.
If the department of justice, a district attorney, or a state or local law enforcement agency requests any of the following information under par. (b)
from a financial institution, as defined in s. 705.01 (3)
, regarding a specific person, the financial institution shall provide the information within 10 days after receiving the request:
Documents relating to the opening and closing of the person's account.
Notices regarding any of the following that were issued within the 6 months immediately before the request and that relate to the person:
Checks written by the person when there were insufficient funds in his or her account.
Account statements sent to the person by the financial institution for the following:
The period during which any specific check covered by a notice under subd. 2.
The period immediately before and immediately after the period specified in subd. 3. a.
The last known address and telephone number for the person's home and business.
The department of justice, a district attorney, or a state or local law enforcement agency may request information under par. (a)
only if the request is in writing and if it states that the requester is investigating whether the person specified violated this section or is prosecuting the person specified under this section.
A financial institution may not impose a fee for providing information under this subsection.
The grace period under sub. (3) does not transform the issuance of a worthless check into a debt for which one may not be imprisoned under Art. I, s. 16. Locklear v. State, 86 Wis. 2d 603
, 273 N.W.2d 334
Checks cashed at a dog track for the purpose of making bets were void gambling contracts under s. 895.055 and could not be enforced under this statute although returned for nonsufficient funds. State v. Gonelly, 173 Wis. 2d 503
, 496 N.W.2d 671
(Ct. App. 1992).
The distinction between present and past consideration under sub. (4) is discussed. State v. Archambeau, 187 Wis. 2d 501
, 523 N.W.2d 150
(Ct. App. 1994).
Each different group of checks totalling more than $1,000, issued during the 15 day period, may be the basis for a separate charge under sub. (2). State v. Hubbard, 206 Wis. 2d 651
, 558 N.W.2d 126
(Ct. App. 1996), 96-0865
Although sub. (5) (b) references the procedures spelled out in s. 800.093, which discusses municipal courts, the authority sub. (5) (b) confers on any “judge" continues to apply. A circuit court judge may impose restitution under s. 943.24, utilizing the procedures provided for by s. 800.093. OAG 3-12
Worthless checks; civil liability. 943.245(1)(1)
In this section, “pecuniary loss" means:
All special damages, but not general damages, including, without limitation because of enumeration, the money equivalent of loss resulting from property taken, destroyed, broken or otherwise harmed and out-of-pocket losses, such as medical expenses; and
Reasonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense under s. 943.24
Except as provided in sub. (9)
, any person who incurs pecuniary loss, including any holder in due course of a check or order, may bring a civil action against any adult or emancipated minor who:
Knew, should have known or recklessly disregarded the fact that the check or order was drawn on an account that did not exist, was drawn on an account with insufficient funds or was otherwise worthless.
If the person who incurs the loss prevails, the judgment in the action shall grant monetary relief for all of the following:
The face value of whatever checks or orders were involved.
No additional proof is required for an award of exemplary damages under this paragraph.
Notwithstanding the limitations of s. 799.25
, all actual costs of the action, including reasonable attorney fees.
Notwithstanding sub. (2) (c)
, the total amount awarded for exemplary damages and reasonable attorney fees may not exceed $500 for each violation.
Any recovery under this section shall be reduced by the amount recovered as restitution for the same act under ss. 800.093
or as recompense under s. 969.13 (5) (a)
for the same act and by any amount collected in connection with the act and paid to the plaintiff under a deferred prosecution agreement under s. 971.41
At least 20 days prior to commencing an action, as specified in s. 801.02
, under this section, the plaintiff shall notify the defendant, by mail, of his or her intent to bring the action. Notice of nonpayment or dishonor shall be sent by the payee or holder of the check or order to the drawer by regular mail supported by an affidavit of service of mailing. The plaintiff shall mail the notice to the defendant's last-known address or to the address provided on the check or order. If the defendant pays the check or order prior to the commencement of the action, he or she is not liable under this section.