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Homicide by Intoxicated Vehicle Use (§ 940.09)

An OWI fatality elevates a first-offense OWI from civil forfeiture to a Class D felony with 25 years of prison exposure. How we defend § 940.09 cases.

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A Single Fatality Changes Everything About the Case

In Wisconsin, a first-offense OWI is a civil forfeiture with no jail, no felony, and no criminal record. The same stop, with a passenger or other driver who does not survive, becomes a Class D felony with 25 years of prison exposure, without any prior OWI history at all.

Homicide by intoxicated use of a vehicle is the single largest sentencing cliff in Wisconsin criminal law. Defense preparation has to reflect that.

The law at a glance

§ 940.09 criminalizes causing a death while operating a vehicle under the influence or with a prohibited alcohol concentration. Under § 940.09(1c)(a) it is a Class D felony, up to 25 years confinement plus extended supervision per § 939.50, and 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.”

Under § 940.09(1c)(b) the charge is a Class C felony, up to 40 years, if the person “has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2).” That list is broad. It reaches ordinary OWI and PAC convictions under § 346.63, refusal revocations under § 343.305(10), and qualifying out-of-state convictions and revocations, not just a prior § 940.09 or § 940.25. One prior of any of those kinds is enough. The same 5-year confinement floor applies.

What the State Must Prove

Under § 940.09(1), the elements are:

  1. The defendant operated a motor vehicle.
  2. The operation caused the death of another person (or of an unborn child, in the subsection for pregnant victims).
  3. At the time of operation, the defendant was either:
    • Under the influence of an intoxicant, a controlled substance, or a combination, to a degree that rendered them incapable of safely driving; or
    • Had a prohibited alcohol concentration (0.08 for most drivers); or
    • Had a detectable amount of a restricted controlled substance in their blood.

Note what is not required: the State does not have to prove the intoxication caused the death. Once operation + death + intoxication are shown, the State has its prima facie case. That is why § 940.09 is treated as a strict-liability-adjacent homicide statute.

The Statutory Affirmative Defense

Because § 940.09 does not require the State to prove causation in the traditional sense, the legislature wrote an affirmative defense into the statute itself. Under § 940.09(2), it is a defense that:

The death would have occurred even if the defendant had been exercising due care and had not been under the influence or had not had a prohibited alcohol concentration.

The defendant carries the burden of persuasion by a preponderance. This is a winnable defense in the right case. Accident reconstruction, victim actions (running a red light, crossing mid-block, driver’s side impact from the other direction), road conditions, and vehicle defects all go into building the defense.

Defenses We Develop

  • Affirmative defense under § 940.09(2). The single most important evidentiary line of attack. Accident-reconstruction experts, toxicology experts, and often an engineer review the crash.
  • Probable cause for the stop / seizure. The same Fourth Amendment analysis that applies in any OWI applies here. If the stop fails, the BAC comes out.
  • Blood-draw challenges. Time of draw versus time of driving; forensic gap analysis; equipment calibration; chain of custody; Retrograde-extrapolation challenge on § 885.235 presumptions.
  • Identity of the driver. Multi-occupant vehicles, ejections, and post-crash movement all raise real identity-of-driver issues.
  • Causation in the natural-meaning sense, was the defendant’s operation the cause, or was the operation merely present at a fatality driven by the decedent’s acts or a third-party vehicle.
  • Prior-conviction attack. If the State seeks Class C elevation under § 940.09(1c)(b), the predicate prior conviction, suspension, or revocation counted under § 343.307(2) is itself subject to collateral attack.
  • The 5-year confinement floor. Section 940.09(1c) lets the court go below 5 years of confinement “if the court finds a compelling reason and places its reason on the record.” Building that record is sentencing work that starts long before the hearing.

A Minor Passenger Under 16

Section 940.09 contains no minor-passenger enhancer. The under-16 passenger provisions sit in the OWI penalty statutes: § 346.65(2)(f) doubles or replaces the ordinary OWI penalty, and § 343.30(1q)(b)4m. doubles the licence revocation. Those provisions apply to a conviction under § 346.63(1), not to a § 940.09 homicide count.

If your case involves a minor passenger but no fatality, see our OWI practice overview or the offense-specific treatment on racineowi.com.

Parallel Charge: Homicide by Negligent Operation

Wisconsin also maintains § 940.10, homicide by negligent operation of a vehicle, a Class G felony covering deaths from criminally negligent driving without an intoxication element. Prosecutors occasionally charge § 940.10 as an alternative to § 940.09 when the BAC is close to .08 or the intoxication evidence is contested. We watch for that and argue accordingly.

Sentencing Stakes and Mitigation

The median sentence in Wisconsin § 940.09 cases is measured in years, not months. Sentencing mitigation, acceptance of responsibility, restitution, alcohol treatment documentation, mental-health evaluation, victim-family statements, is worked hard from the moment the case is filed, not only at the sentencing hearing.

If You Are Under Investigation

Do not give a statement. Do not consent to a blood draw beyond the legally required implied-consent testing. Do not discuss the crash with insurance, media, or family in written form. Call us.

Call or text Cafferty, Scheidegger & Johnson at (262) 632-5000, 24 hours a day. Consultations are free and confidential.

Frequently Asked Questions

How long do you go to prison for homicide by intoxicated use of vehicle in Wisconsin?
Up to 25 years prison plus extended supervision under § 940.09(1c)(a), as a Class D felony per § 939.50(3)(d). Section 940.09(1c)(a) also requires a bifurcated sentence with at least 5 years of confinement unless the court finds a compelling reason and places it on the record. Under § 940.09(1c)(b) the charge becomes a Class C felony with a 40-year maximum if the person has one or more prior convictions, suspensions, or revocations counted under § 343.307(2), which reaches ordinary OWI and PAC convictions, refusal revocations, and qualifying out-of-state matters, not only a prior § 940.09 or § 940.25. Actual sentences vary widely based on BAC, prior record, victim-impact factors, and accident-reconstruction findings.
Does the State have to prove intoxication caused the death?
No, and that is what makes § 940.09 so dangerous. The State only has to prove three elements: (1) the defendant operated a motor vehicle, (2) operation caused the death of another person, and (3) at the time of operation the defendant was intoxicated, had a prohibited alcohol concentration of 0.08 or above, or had a detectable amount of a restricted controlled substance in their blood. The State does not have to prove the intoxication itself caused the crash.
Is there an affirmative defense to § 940.09?
Yes. Because § 940.09 does not require the State to prove traditional causation, the legislature wrote an affirmative defense into § 940.09(2): the death would have occurred even if the defendant had been exercising due care and had not been intoxicated. The defendant carries the burden of persuasion by a preponderance. Accident-reconstruction experts, victim-conduct evidence (running a red light, crossing mid-block), road conditions, and vehicle defects all build this defense.
What is the difference between homicide by intoxicated use and reckless homicide?
Homicide by intoxicated use of vehicle under § 940.09 is a Class D felony specific to OWI fatalities, requiring no proof that intoxication caused the death. First-degree reckless homicide under § 940.02 is a Class B felony (up to 60 years) requiring proof of utter disregard for human life. Homicide by negligent operation of a vehicle under § 940.10 is a Class G felony (up to 10 years) covering deaths from criminally negligent driving without an intoxication element.
Can a § 940.09 charge be reduced to a lesser offense?
Yes, in the right cases. Common reduction paths include amendment to § 940.10 homicide by negligent operation (Class G felony, up to 10 years) when the BAC is borderline or the intoxication evidence is contested, amendment to § 940.25 great bodily harm by intoxicated use when the victim survived (Class F felony), and suppression motions targeting the blood draw or the basis for the stop. Suppression of the BAC eliminates the most powerful element.
What does a passenger under 16 add to the charge?
Nothing under § 940.09 itself. Section 940.09 contains no minor-passenger provision. The under-16 passenger rules live in the OWI penalty statutes: § 346.65(2)(f) sets the fine and jail exposure for a conviction under § 346.63(1) with a minor passenger, and § 343.30(1q)(b)4m. doubles the licence revocation. Those apply to the OWI count, not to a § 940.09 homicide count. A prosecutor may still argue the presence of a child as an aggravating sentencing factor.
What does the State have to prove for the prior-conviction enhancer?
Under § 940.09(1c)(b), the State must prove the person has one or more prior convictions, suspensions, or revocations as counted under § 343.307(2). That list is broader than most people expect: it includes convictions under § 346.63(1) or (5), convictions under § 346.63(2) or (6), refusal revocations under § 343.305(10), qualifying convictions and refusal-based suspensions from other jurisdictions, and convictions under § 940.09(1) or § 940.25. A single one of those elevates the charge from Class D to Class C. The predicate is itself subject to collateral attack: was the defendant represented by counsel, was the plea knowing and voluntary, were Boykin colloquy requirements met. A successful collateral attack drops the charge an entire felony class.
Should I consent to a blood draw after a fatal crash?
No without consulting an attorney first, and even then only the implied-consent draw the law actually requires. Wisconsin's implied-consent statute under § 343.305 covers a single post-arrest blood draw. Additional draws, additional samples, and law-enforcement requests for hair or other biological samples typically require either a warrant or your consent. Refusing the implied-consent draw triggers automatic license revocation but may also be the right strategic call when a fatality has occurred.
Can the timing of the blood draw be challenged?
Yes, and successfully in many cases. Retrograde-extrapolation challenges target the gap between the time of driving and the time of the blood draw. Forensic-toxicology experts can testify that a BAC drawn 2-3 hours post-incident does not reliably reflect the BAC at the time of operation, particularly when the defendant continued drinking post-crash, when the absorption phase had not completed, or when the lab used a single-point extrapolation rather than a multi-point analysis. The § 885.235 statutory presumption is rebuttable.
How much does a Wisconsin homicide-by-intoxicated-use-of-vehicle defense lawyer cost?
These are the most resource-intensive defenses in Wisconsin OWI practice, requiring accident-reconstruction experts, forensic toxicology, sometimes a vehicle engineer, and extensive motion practice. Engagements typically run as a tiered flat fee with separate trial-phase pricing. The investment is small relative to a 25-year Class D felony sentence and the lifetime collateral consequences of a felony homicide conviction.

Why Choose Cafferty

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From our offices in Racine and Kenosha Wisconsin, the criminal defense lawyers at Cafferty, Scheidegger & Johnson 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.

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The attorneys at Cafferty, Scheidegger & Johnson 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.

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The dedication of the team at Cafferty, Scheidegger & Johnson 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 Preeminent rating by Martindale-Hubbell. Cafferty, Scheidegger & Johnson is backed by more than 32 years of trial skills and courtroom experience.

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