While many individuals believe that pepper spray is a worthy self-defense tool, using oleoresin of capsicum (pepper spray) to cause bodily harm is a Class A misdemeanor in Wisconsin. And while a Class A misdemeanor will not (on its own) result in a prison sentence, this charge still carries a maximum penalty of 9 months in jail, $10,000.00 in fines or both. This is the most significant non-felony charge in Wisconsin, and should be taken very seriously.
Using a weapon to commit a crime distinguishes this sort of offense from a normal misdemeanor battery. Typically, using a weapon serves to just aggravate the situation and result in increased penalties. This even applies in situations involving pepper spray.
If you face any sort of criminal charge throughout Wisconsin, we believe it’s best to hire a top criminal defense lawyer. At Van Severen Law Office, S.C., we serve clients throughout the state. Clients in both small counties and large urban areas recognize us as some of Wisconsin’s best. Importantly, we offer free consultations to potential clients. Contact us at (414) 270-0202 to speak with our team about how we can help.
Using pepper spray to cause bodily harm is buried within a broader statute titled “Machine guns and other weapons; use in certain cases; penalty.” This might look strange, but this statutory organization is pretty typical in Wisconsin. After all, while pepper spray isn’t a machine gun, it certainly is an “other weapon.”
Section 941.26(4) of the Wisconsin Statutes indicates:
(a) Subsections (1g) to (3) do not apply to any device or container that contains a combination of oleoresin of capsicum or CS gel and inert ingredients but does not contain any other gas or substance that will cause bodily discomfort.(b) Whoever intentionally uses a device or container described under par. (a) to cause bodily discomfort to another is guilty of a Class A misdemeanor.
1. Any person acting in self-defense or defense of another, as allowed under s. 939.48.2.Any peace officer acting in his or her official capacity. Notwithstanding s. 939.22 (22), for purposes of this subdivision, peace officer does not include a commission warden who is not a state-certified commission warden.3. Any armed forces or national guard personnel acting in the line of duty.
Wisconsin courts regularly use jury instructions at trial and during plea hearings. They’re important because jury instructions break down crimes into smaller parts using simple language. Those parts are important, because they’re the elements of the offense. In order to sustain a conviction against the defendant, the government must prove each element of the crime beyond a reasonable doubt. If the government fails, the charge doesn’t stick.
Wisconsin Criminal Jury Instruction 1341B provides the elements of using oleoresin of capsicum to cause bodily harm:
There are thousands of attorneys throughout Wisconsin. A small minority of them handle criminal cases. And even smaller portion are properly equipped to launch a proper defense against serious criminal charges. At Van Severen Law Office, S.C., our firm and our attorneys are regularly recognized as some of Wisconsin’s best. Our entire firm dedicates itself to representing individuals facing criminal charges just like these.
While a Class A misdemeanor is not the most serious charge in Wisconsin, it’s only one level short of becoming a felony. The maximum penalty you face if convicted is 9 months in jail. Avoiding this consequence, or completely avoiding a criminal record, are important to many people. We recognize that. We want to help.
Contact us at (414) 270-0202 to begin speaking with our firm about representation.