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Drunk Driving Homicide

A new law was enacted in Wisconsin that changes the sentencing structure for drunk driving homicides.  Signed into law by Governor Tony Evers on November 20, 2019, the bill created a presumptive minimum penalty for all drunk driving homicides.  This post will explain the new law, how it changes the old law, and ways you can fight your drunk driving homicide charge.

Minimum Sentence for Drunk Driving Homicide

Prior to the new law, a conviction for drunk driving homicide in Wisconsin was a class D felony.  A class D felony carries a maximum period of confinement of 25 years.  There is a maximum initial confinement period of 15 years and a maximum period of extended supervision of 10 years.  There is a maximum fine of $100,000.  If you have a prior drunk driving conviction on your record, the conviction was a class C felony.  Here, the offender faced  a maximum period of confinement of 40 years.  There is a maximum initial confinement period of 25 years and a maximum period of extended supervision of 15 years.

Under the new law, the maximum penalties remain the same for drunk driving homicide as a first offense and as a repeat offense.  However, the new law creates a presumptive minimum penalty.  The new statute is found in Wis. Stat. Sec. 940.09(1c)(a).   It states that a judge sentencing someone convicted of drunk driving homicide must impose 5 years of initial confinement in prison.  It further states that judge may deviate from the 5 year minimum if the court finds a compelling reason and places that reason on the record.

Therefore, the new law creates a presumptive minimum penalty rather than a mandatory minimum penalty.  You may have heard media outlets refer to the new law as creating a mandatory minimum penalty.  However, that is not the case here.  The difference is that the judge is permitted to impose a lesser sentence if there is a compelling reason.  We will have to wait and see what constitutes a “compelling reason.”  But the good news for defendants facing a drunk driving homicide charge is that there is still a chance that they could serve less than 5 years of initial confinement.

Drunk Driving Homicide – What Is It?

Wisconsin criminalizes operating a motor vehicle while under the influence of an intoxicant for second and subsequent offenders.  It is also a crime to injure someone while operating under the influence.  The most serious OWI charge, however, is homicide by intoxicated use of a vehicle.

The prosecutor must prove certain elements to secure a conviction for homicide by intoxicated use of a vehicle,.  First, they must prove that you operated a motor vehicle on a highway.  Operating a vehicle means that you manipulated the controls which put a vehicle in motion.  A highway is any roadway that can be used by the public.  The second element is that the operation of the motor vehicle caused the death of another person.  Cause means that the operation of the vehicle was a substantial factor in the death of that person.  Finally, the defendant must be under the influence of an intoxicant at the time of the operation of the vehicle.  Under the influence of an intoxicant means that the driver’s ability to operate the vehicle was materially impaired due to the consumption of alcohol.

You DO Have A Defense

Hypothetical Example

There is a specific statutory defense to drunk driving homicide.  The defendant has the burden of proving the defense exists.  The defendant must prove that the death would have occurred even if the defendant was not intoxicated and operated the vehicle with due care.  A hypothetical illustrates the defense.

  • Joe is driving his car in rural Wisconsin on a two-lane county highway.  The speed limit is 55 miles per hour.  It is 2:00 pm and the weather is clear.
  • Joe is driving the speed limit and approaches an intersection where cross traffic has a stop sign.  Joe does not have a stop sign and therefore has the right of way.
  • Mike is approaching the intersection and has a stop sign.  However, Mike does not stop at the stop sign.  Instead, Mike disregards the stop sign and enters the intersection at the same time as Joe.
  • Joe t-bones Mike, killing him instantly.  The accident is the official cause of Mike’s death.
  • Joe’s blood alcohol level is .12, which is over the legal limit.  It is presumed that a driver above .08, is intoxicated.

Let’s look at the hypothetical to explain why Joe has a defense to his drunk driving homicide charge.  First, we know that Joe was driving (operating) his vehicle on a highway.  We also know that Joe was under the influence of an intoxicant.  The weather was fair and it was the middle of the afternoon.  Finally, we know that the accident caused Mike’s death.

The Affirmative Defense Exists

Joe has a great chance to show that the accident would have occurred regardless of the fact that Joe was under the influence.  From the hypothetical, it is clear that the accident was unavoidable.  The accident did not occur due to Joe’s intoxication.  Rather, it happened because Mike blew the stop sign and entered the intersection.  If Joe can prove this to a jury, he will be found not guilty.  Or, if Joe’s lawyer can prove the defense to the prosecutor ahead of time, the case could be dismissed altogether.

Experience Matters

The lawyers at Meyer Van Severen, S.C. handle these cases all the time.  As you can see from the hypothetical, drunk driving homicide cases are very fact specific.  Even if your case doesn’t fit neatly into the above scenario, you may still have other defenses.  Do not wait for your case to slog its way through pretrial hearings before hiring experienced criminal defense attorneys.  Remember, a drunk driving homicide conviction carries a minimum sentence of 5 years in prison.  Call us today for a free initial consultation.