Using oleoresin of capsicum (pepper spray) to cause bodily harm (Wis. Stat. 941.26(4)(b) defense attorneys
Using oleoresin of capsicum (also known as pepper spray) to cause bodily harm is a crime in Wisconsin.
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.
Section 941.26(4)(b) of the Wisconsin Statutes – Using pepper spray to cause bodily harm
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.”
(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.
As we previously discussed, many individuals use oleoresin of capsicum for self-defense purposes. Surely using it for the purpose of defending yourself isn’t a crime, right? The statutes go on to describe a few places where using pepper spray to cause bodily harm is not a crime:
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.
Importantly, the statute uses the term “oleoresin of capsicum” to refer to the substance commonly known as “pepper spray,” “pepper gas,” or “pepper mace.” Not all material commonly referred to by those terms meets the requirements of this statute, which provides, in effect, that the offenses defined in sub. (4) apply to “a 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.” Our use of the word “pepper spray” throughout this page refers to oleoresin of capsicum.
Finally, simple possession of pepper spray is not a crime (so long as you are not a felon). In order to face criminal liability, the defendant must use the substance in one of the ways proscribed above.
Wisconsin Criminal Jury Instruction 1341B
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.
Firstly, the defendant used a device or container of oleoresin of capsicum or CS (orthochlorobenzylidene) gel to cause bodily harm or bodily discomfort to the victim.
Cause means that the defendant’s conduct was a substantial factor in producing bodily harm or discomfort.
Bodily harm means physical pain or injury, illness, or any impairment of physical condition.
Secondly, the defendant acted intentionally. This requires that the defendant acted with the mental purpose to cause bodily harm or bodily discomfort to the victim and was aware that his conduct was practically certain to cause that result.
This element also requires that the defendant knew that the device or contained contained oleoresin of capsicum or CS gel.
The active ingredient in pepper spray is capsaicin, which is derived from the fruit of plants in the genus Capsicum, including chilis. Using oleoresin of capsicum (pepper spray) to cause bodily harm is a Class A misdemeanor in Wisconsin. Contact Van Severen Law Office, S.C. at (414) 270-0202 for help defending this or any other criminal charge.
Contact Van Severen Law Office, S.C. for criminal defense: (414) 270-0202
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.
