Homicide by intoxicated use of a vehicle defense

What are the elements of homicide by intoxicated use of a vehicle?

All criminal offenses in Wisconsin have certain elements that the government must prove beyond a reasonable doubt at trial.  If the government cannot prove each element, the defendant must be found not guilty.  While most elements are pretty simple, we’re going to provide three sets here: homicide by operation of a vehicle with a prohibited alcohol concentration (PAC), homicide by operation of a vehicle while under the influence, and homicide by operation of a vehicle with a detectable amount of a restricted controlled substance.  All charges are relevant to what we’re talking about here.

Homicide by operation of a vehicle with a prohibited alcohol concentration.

Remember, operating with a prohibited alcohol concentration is the drunk driving offense that focuses on the number.  The number in most cases is a .08.  If your blood alcohol concentration (BAC) is higher than a .08, you’ll be charged with operating with a PAC.  If you kill someone while operating with a PAC, you’ll be charged with homicide by operation of a vehicle with a prohibited alcohol concentration.  Wisconsin Criminal Jury Instruction 1186 provides the elements of his offense:

• Firstly, the defendant operated a vehicle; and
• Secondly, the defendant’s operation of a vehicle caused the death of the vicim; and
• Thirdly, the defendant had a prohibited alcohol concentration at the time the defendant operated the vehicle.

We’ve covered these definitions in other posts, but they’re important here:

• Operate means the physical manipulation or activation of the controls of a vehicle necessary to put it in motion.
• Cause means that the defendant’s operation of a vehicle was a substantial factor in producing the death.

Sometimes the prohibited alcohol concentration changes.  For example, if the defendant has three or more convictions, suspensions, or revocations in connection to drunk driving, the prohibited alcohol concentration moves to .02.

Homicide by operation of a vehicle while under the influence

The PAC charge is easy to see.  It’s a number.  But we must remember that frequently law enforcement officers issues both a PAC and an OWI.  The same applies when dealing with drunk driving homicide cases.  Wisconsin Criminal Jury Instruction 1185 describes homicide by operation of a vehicle while under the influence:

• Firstly, the defendant operated a vehicle; and
• Secondly, the defendant’s operation of a vehicle caused the death of the victim; and
• Thirdly, the defendant was under the influence of an intoxicant at the time the defendant operated a vehicle.

You’ll notice this sounds a lot like the PAC offense.  And you’re certainly correct.  The only difference is that one focuses on a number (.02 or .08) and the other focuses on whether the defendant was under the influence of an intoxicant.  But that’s kind of the same thing.

So how does the governments how the defendant was under the influence?  Section 939.22(42) of the Wisconsin Statutes defines “under the influence of an intoxicant” as meaning:

… the actor’s ability to operate a vehicle or handle a firearm or airgun is materially impaired because of his or her consumption of an alcoholic beverage, hazardous inhalant, of a controlled substance or controlled substance analogue under ch. 961, of any combination of an alcohol beverage, hazardous inhalant, controlled substance and controlled substance analog, or of any other drug or of an alcohol beverage and any other drug.

Finally, what about homicide by OWI involving drugs?

Section 940.09(1)(am) of the Wisconsin Statutes prohibits causing the death of another by the operation or handling of a vehicle while the driver has a detectable amount of a restricted controlled substance in his or her blood. Wisconsin Criminal Jury Instruction 1187 provides the elements of that offense:

• Firstly, the defendant operated a vehicle; and
• Secondly, the defendant’s operation of a vehicle caused the death of the victim; and
• Finally, the defendant had a detectable amount of a restricted controlled substance in his or her blood at the time the defendant operated a vehicle.

What if the death would have occurred anyway?

Let’s assume the defendant is completely drunk but operating his vehicle in a safe, reasonable manner.  He approaches a stop sign and stops.  He drives through the intersection and then a speeding driver hits him.  The driver of the speeding vehicle ignored her stop sign and collided with the drunk driving.  The drunk driver’s actions satisfy the elements: Firstly, he operated a vehicle.  Secondly, his operation of the vehicle caused the death of the victim.  And finally, the drunk driving was under the influence of an intoxicant at the time.  So what now?  The government satisfies its elements.  But something feels wrong here – the driver’s intoxication didn’t cause the death of the victim.  The victim’s own negligence caused her death.

Thankfully the legislature dealt with this scenario in section 940.09(2) of the Wisconsin Statutes, which provides:

… the defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence …

Thankfully this statute saves drivers in the example we provided above.  If your intoxication does not cause the death, and if you’re exercising due care when the death occurs, you’re not guilty of the offense.  And since nearly every drunk driving causing homicide case will involve a car accident, it’s crucial we analyze this subsection and apply it to your case.

How do we win my homicide case?

Certainly our first step is to figure out whether the accident would have occurred either way.  If we can show that, we should begin solidifying that defense for you.

But there might be other issues.  Frequently when there are numerous drivers in a vehicle, and an accident occurs, the occupants flee.  How does the government put you in the driver’s seat?  For example, what if you’re in the passenger seat?  And then when everyone flees, the driver actually says you were responsible.  What then?  We’ve defended situations exactly like this before.  In that case, we ensured that the airbags were cut from the vehicle and preserved in evidence.  Upon testing, our client’s DNA only showed up on the passenger side.  We achieved a complete dismissal of charges on that case.

Certainly there are other issues we face in these cases.  Were proper testing protocols followed and was your blood properly maintained?  Did police properly Mirandize you prior to in-custody interrogation?  All of these questions are important to your defense.

Finally, contact Van Severen Law Office to start fighting your case

The criminal defense attorneys at Van Severen Law Office are specialists.  100% of our work focuses on criminal and drunk driving cases.  We regularly defend individuals facing drunk driving homicide charges. If you face criminal charges, we can help.

Our criminal defense attorneys are available 24/7 at (414) 270-0202.

Call us.  Let’s start preparing your best defense.