Cafferty & Scheidegger on Facebook Cafferty & Scheidegger on X Cafferty & Scheidegger on LinkedIn
Call or Text us Phone Mobile (262) 632-5000 Email Email us Español
Cafferty & Scheidegger, S.C.
Practice Area

First-Degree Reckless Homicide (§ 940.02)

People call it negligent homicide. Wisconsin calls it first-degree reckless homicide, a Class B felony with a 60-year maximum. How we defend it.

Free Case Review Call (262) 632-5000

“Negligent Homicide” Is Not the Term in Wisconsin

In common conversation, people describe a death caused by carelessness as “negligent homicide” or “involuntary manslaughter.” Wisconsin uses neither term. The functional equivalent in this state is first-degree reckless homicide under § 940.02. It covers killings caused by recklessness that shows utter disregard for human life, drug-delivery deaths, certain shooting-into-a-crowd cases, and many vehicular fatalities outside the OWI statute.

The law at a glance

§ 940.02 makes first-degree reckless homicide a Class B felony: up to 60 years of bifurcated confinement and extended supervision per § 939.50. A subcategory, drug-delivery reckless homicide under § 940.02(2), elevates the charge when the State proves the defendant delivered a controlled substance that caused the death.

What the State Must Prove

  • The defendant caused the death of another human being.
  • The act showed utter disregard for human life, more than ordinary negligence, more than criminal recklessness, a category higher.
  • For the drug-delivery subcategory, the defendant delivered the controlled substance (or a controlled-substance analog) and that substance was a substantial factor in the victim’s death.

“Utter disregard” is a culpability standard above simple recklessness. Wisconsin appellate courts analyze the defendant’s conduct before, during, and after the act to determine whether it crossed that line. A defendant who immediately called 911 and rendered aid, for example, has substantially more room to argue against utter disregard than one who fled.

The Drug-Delivery Variant

Overdose deaths in Wisconsin are increasingly charged under § 940.02(2). Fentanyl has accelerated the pattern. A defendant who sold, shared, or even jointly purchased a controlled substance that another person later used and died from can be charged with a Class B felony, even when the sale was among friends and no profit was involved.

Defenses specific to drug-delivery charges:

  • Substantial-factor causation. If the victim had other drugs or medical factors contributing to death, expert toxicology can undercut “substantial factor.”
  • Delivery element. Sharing from a common supply is legally distinct from delivering. Case law is active on this point.
  • Chain of custody. The State must tie the specific substance in the victim’s body to the defendant.
  • Hearsay and text-message evidence often forms the bulk of drug-delivery cases and is vulnerable to Crawford and Bruton challenges.

If you are facing a controlled-substance charge without a death allegation, see our drug charges overview.

Sentencing Reality

First-degree reckless homicide sentencing varies widely. In the 4-county southeast Wisconsin region, judges have imposed everything from probation-eligible short confinement to the full 60 years. The factors that move the needle:

  • Whether the drug-delivery subcategory applies.
  • Whether the defendant rendered aid or fled.
  • Prior felony record.
  • Strength of utter-disregard evidence versus ordinary-recklessness evidence.
  • Victim impact.

Good sentencing preparation, mitigation witnesses, mental-health or substance-abuse evaluations, written sentencing memoranda, routinely knocks years off the confinement portion of the bifurcated sentence.

Defense Angles

  • Mens-rea reduction. If the State cannot prove utter disregard, the charge drops to second-degree reckless homicide under § 940.06, a Class D felony (25-year maximum).
  • Causation. Intervening medical treatment, alternative cause of death, and failure to connect the defendant’s act to the death all live here.
  • Identity and presence. Often the weakest link in the State’s case in drug-delivery cases.
  • Miranda and statement suppression. Nearly every reckless homicide case involves a contested interview.
  • Expert forensics. Toxicology, time-of-death, and ballistic reconstructions deserve independent review.

Call Before You Talk to Anyone Else

If you are under investigation for a reckless homicide, particularly a drug-delivery case, the hours after the death are when law enforcement develops the theory. A defense attorney involved early can protect you during interviews, preserve exculpatory evidence, and shape the charging decision.

Call or text Cafferty & Scheidegger at (262) 632-5000. Consultations are free and confidential.

Frequently Asked Questions

How long do you go to prison for first-degree reckless homicide in Wisconsin?
First-degree reckless homicide under § 940.02 is a Class B felony, up to 60 years total: split into initial confinement and extended supervision under § 939.50 and § 973.01. There is no mandatory minimum, but Wisconsin truth-in-sentencing means the confinement portion is served day-for-day. Drug-delivery reckless homicide under § 940.02(2) carries the same 60-year maximum and is the most aggressively charged variant in the four-county region.
Is first-degree reckless homicide the same as negligent homicide or manslaughter?
It is the closest Wisconsin equivalent. Wisconsin replaced common-law manslaughter with a graded homicide scheme. What other states call involuntary manslaughter or negligent homicide tracks to first-degree reckless homicide (§ 940.02) when the conduct showed utter disregard for human life, or to second-degree reckless homicide (§ 940.06) at the lower-culpability tier. Pure criminal-negligence vehicular fatalities go to homicide by negligent operation of a vehicle (§ 940.10), Class G felony.
What does the State have to prove for first-degree reckless homicide?
Two core elements beyond reasonable doubt: (1) the defendant caused the death of another, and (2) the defendant's conduct showed utter disregard for human life. Utter disregard is a culpability standard above ordinary recklessness; appellate courts examine conduct before, during, and after the act. For drug-delivery reckless homicide under § 940.02(2), the State adds: (3) the defendant delivered a controlled substance and (4) that substance was a substantial factor in the death.
Can a first-degree reckless homicide charge be reduced to second-degree?
Yes. If the State cannot prove utter disregard for human life, the charge drops to second-degree reckless homicide under § 940.06, a Class D felony with a 25-year maximum (less than half the § 940.02 ceiling). Conduct mitigators that defeat utter disregard: rendering aid, calling 911, expressing remorse at the scene, voluntary statements to police, absence of flight. The reduction is one of the most-litigated questions in these cases.
Should I plead guilty to first-degree reckless homicide?
Almost never as a first response. The State's burden on utter disregard is heavy and routinely litigable, and many drug-delivery cases (the most-charged variant) collapse on substantial-factor causation, the delivery-versus-joint-purchase distinction, or chain-of-custody on the toxicology. A plea to § 940.02 forfeits the § 940.06 reduction (which alone cuts the maximum by 35 years) and forfeits suppression of any contested confession or interview. Talk to a defense lawyer before any plea discussion.
Can a drug overdose death really be charged as homicide?
Yes, under § 940.02(2), drug-delivery reckless homicide. A defendant who sold, shared, or even jointly purchased a controlled substance that another person later used and died from can face a Class B felony with 60 years of exposure, even when no profit was involved. Fentanyl has accelerated this prosecution pattern across Racine, Kenosha, and Walworth Counties. Defenses focus on substantial-factor causation (other drugs in the system, pre-existing medical conditions), the delivery element (joint purchase is not delivery under current case law), and chain of custody on the substance.
Does first-degree reckless homicide stay on your record forever?
Yes, permanently. Expungement under § 973.015 is available only for offenses with a maximum penalty of six years or less; § 940.02 is a Class B felony with a 60-year maximum. The conviction sits permanently on CCAP, NCIC, and every commercial background check, triggers lifetime federal firearm prohibition under 18 U.S.C. § 922(g)(1), and is treated as an aggravated felony for federal immigration purposes.
What is utter disregard for human life?
It is a culpability standard between criminal recklessness and intentional conduct. Wisconsin appellate cases (State v. Burris, State v. Jensen) analyze the totality of circumstances: the riskiness of the act, the social value of the activity, the actor's awareness of the risk, the actor's purpose, and conduct before and after. A defendant who immediately rendered aid and called 911 has substantially more room to argue against utter disregard than one who fled. The standard is contestable and is the most common reduction lever from § 940.02 to § 940.06.
How much does a first-degree reckless homicide defense lawyer cost?
Reckless homicide engagements run as flat fees at the high end of our range. The cost reflects retained experts (toxicologist for drug-delivery cases, accident reconstruction in vehicular non-OWI cases, forensic pathology), investigator work tracing the substance and the victim's medical history, and pretrial motion practice on Miranda, identification, hearsay (text messages and informant statements), and Crawford confrontation. Specific quote depends on whether the case is the drug-delivery subcategory, evidence volume, and trial likelihood.

Why Choose Cafferty

Free Consultation

From our offices in Racine and Kenosha Wisconsin, the criminal defense lawyers at Cafferty & Scheidegger defend the rights of people charged with state and federal criminal offenses throughout Southeastern Wisconsin (Racine, Kenosha, Walworth). If you or a loved one is charged with a crime, contact us today to arrange a free initial consultation with an experienced Racine criminal defense attorney right away. For urgent matters, you are welcome to call or text us 24 hours a day at (262) 632-5000.

We Defend You

The attorneys at Cafferty & Scheidegger have excellent knowledge of the state and federal court system throughout Southeastern Wisconsin. They are aggressive trial lawyers that are recognized for integrity and hard work. Our law firm’s strength lies in our exceptional pre-trial investigation and case preparation. We come to the prosecutor’s office prepared with the facts and ready to help you get the best possible outcome for your charges. Our priority is always to keep you out of jail and avoid a conviction on your record, whenever possible.

Proven Experience

The dedication of the team at Cafferty & Scheidegger to client service and their record of success has earned them listings as Wisconsin Super Lawyer® from 2008 - 2026. In addition, their reputation for high standards has earned them an AV Distinguished rating by Martindale-Hubbell. Cafferty & Scheidegger is backed by more than 32 years of trial skills and courtroom experience.

Contact us today for a free consultation

We are here to help you with your case questions.

Contact us