Homicide by intoxicated use of a firearm or airgun defense attorneys - Wis. Stat. 940.09(1g)
Homicide by intoxicated use of a firearm or airgun is a 25 year felony in Wisconsin. Contact Van Severen Law Office for help: (414) 270-0202
Although a lower-level felony than many homicide charges, homicide by intoxicated use of a firearm or airgun is Class D felony and carries a maximum penalty of 25 years in prison. This charge fits into the general Wisconsin homicide scheme – with First Degree Intentional Homicide being a Class A felony, First Degree Reckless Homicide being a Class B felony, and lower-level homicide charges (such as this one) fitting into the Class D felony category. Importantly, Class D felonies in Wisconsin break down into 15 years initial confinement and 10 years extended supervision. This means that the maximum amount of confinement you face is 10 years in prison, followed by an additional 15 years on Department of Corrections supervision.
And while 25 years isn’t life in prison, it’s an incredibly serious penalty. If you’re sentenced to the maximum penalty, or anything near it, you will lose a significant portion of your life while incarcerated.
The criminal defense lawyers at Van Severen Law Office, S.C. recognize exactly how serious the charges you’re facing are. We’ve represented many other clients in similar positions to yours. And their goals have been different. Trial? We’ve won homicide trials. A plea? We’ve negotiated favorable resolutions for hundreds of clients facing criminal charges. Pre-trial motion? We’ve also filed and argued motions for clients arguing that something the government did was illegal. We’ve succeeded in numerous versions of those motions.
No matter your goal, we’re here to help. Contact Van Severen Law Office, S.C. immediately at (414) 270-0202. We’re available 24/7 and we always offer free consultations to potential clients.
What is homicide by intoxicated use of a firearm? Homicide by intoxicated use of an airgun? Section 940.09(1g) of the Wisconsin Statutes explains:
(1g) Any person who does any of the following is guilty of a Class D felony:
(a)Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
(am)Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b)Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d)Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
You’ll quickly notice a few things about this law. One is that certain parts of the statutes reference “under the influence of an intoxicant” whereas others mention “an alcohol concentration of .08 or more.” This is an important distinction. “Under the influence of an intoxicant” means that the defendant’s ability to handle the firearm was materially impaired because of the consumption of an alcoholic beverage. In addition, intoxicants include ingestion of any kind of controlled substance. Referencing .08 focuses on the blood alcohol content alone.
Wisconsin Criminal Jury Instruction 1190 – Homicide by operation or handling of firearm or airgun while under the influence
Sometimes crimes listed in the statutes, those that appear on CCAP, and the titles of jury instructions differ slightly. The most important things about figuring out offenses is that the statute matches. This jury instruction focuses on 940.09(1g)(a) – the homicide offense involving a firearm or airgun and simply being “under the influence of an intoxicant.” We’ll use this to break down this crime a little further. Wisconsin Criminal Jury Instruction 1190 requires a few different things:
Firstly, that the defendant operated or handled the firearm;
Secondly, that the defendant’s handling or operation of the firearm caused the death of the victim. “Cause” means that the defendant’s handling of the firearm was a substantial factor in producing the death.
And finally, that the defendant was under the influence of an intoxicant at the time the defendant handled the firearm.
Importantly, “firearm” and “airgun” can be used in this instruction interchangeably, as the statute can be used to charge both. A firearm is a weapon that acts by the force of gunpowder. An airgun is a weapon that expels a missile (object, pellet, bb) by the expansion of compressed air or other gas.
The government must prove all of these elements of the offense. If they cannot succeed in proving the elements (these are the three points provided in the jury instruction) they cannot find you guilty of the crime. While the jury instructions might not seem important, this is exactly why we focus a lot of attention on them. They’re what your whole case rides on.
Airsoft while drunk: one way to face criminal charges. Paintball is another.
While it’s easy to think of this crime as pulling out a firearm at a bar, there are plenty of other circumstances that could lead to criminal charges. One of those is while participating in an airsoft tournament. Paintballing is another. Both of these instruments fire “missiles” designed to strike other players. And while some airsoft guns work by electronic means (by the statute, not exposing you to criminal liability), others use compressed air to fire bbs.
Anyone who has ever played either combat sport and been hit in an area without protection knows how much pain being struck causes. Both sports involve protective equipment that likely alleviates any risk of serious bodily harm or death. A quick search on Google indicates that paintball participants have died after being struck. Airsoft guns have also caused similar results. While discussing death and paintball or airsoft is indeed extreme, it happens.
The best way to avoid any kind of negative consequence from paintballing or airsofting? Compete as the rules require. Follow all of the requirements on the weapons. Wear appropriate protective clothing. And most importantly, do not drink alcohol or use drugs before participating.
Contact Van Severen Law Office, S.C. for help.
We represent individuals facing criminal charges throughout Wisconsin. Frequently those charges include incredibly serious charges, like homicide. In some of those circumstances, individuals handled firearms in an intoxicated manner. In others, the situation didn’t seem as serious. Situations like this are similar to the paintballing and airsofting scenario we discussed before.
In any circumstance, homicide charges are serious. And you should consider hiring a top Wisconsin criminal defense attorney to help defend your case. Hiring the cheapest attorney in town could be a quick route to disaster. Hiring one of the best could be the only way to get through your case in one piece.
You’ll meet a few of Wisconsin’s best and brightest criminal defense lawyers at Van Severen Law Office, S.C. Our main office is located in Milwaukee, WI, but we operate out of numerous satellite offices throughout the state. We’re prepared to help you.
Contact us at (414) 270-0202 to schedule a free initial consultation.