Homicide by Intoxicated Use of Vehicle Defense (Wis. Stat. § 940.09) | Cafferty & Scheidegger

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.

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), the predicate prior conviction is itself subject to collateral attack.

What Changes With a Passenger Under 16

§ 940.09(1c)(d) elevates the penalty when the defendant had a passenger under 16 in the vehicle at the time. The minimum sentence at the Class C-felony-elevation level includes structured supervision with no probation-eligibility.

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.

Related Pages

• OWI/DUI practice overview.
• What is an OWI in Wisconsin?.
• Charged with OWI in Wisconsin.
• Homicide practice overview.
• First-degree reckless homicide, the non-vehicular-OWI reckless homicide.
• OWI microsite: racineowi.com.

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 at (262) 632-5000, 24 hours a day. Consultations are free and confidential.