*1 uncon,stitutionality favor, must be resolved in its a law’s appeals decision. we affirm court appeals By decision of the the Covrt. —The court of affirmed. Wisconsin, Plaintiff-Respondent,
State of
v. Gary Caibaiosai, Defendant-Appellant.†
Supreme Court January Argued No. 83-2330-CR. 3, 1985. February Decided 1985.
(Also reported 574.) in 363 N.W.2d April 30, Motion for 1985. reconsideration denied † *2 defendant-appellant there For the were briefs public argument by oral assistant state Weiss, P. Steven defender. argued by the cause was plaintiff-respondent
For attorney Balistreri, general, J. assistant with Thomas Follette, attorney Bronson La on the briefs was C. whom general.
STEINMETZ, (1) J. The in this issues case are: 940.09(1) (a), Stats.,1 proscribing whether sec. the crime an intoxicated of homicide of a motor ve hicle require is unconstitutional it does not connection causal between the intoxicated condition of operator person; (2) and the death of another wheth provision er affirmative defense set out in 940.09 right against guar his invades self-incrimination anteed the Fifth Amendment to the United States *3 Constitution; and whether the trial court’s refusal jury to instruct on the affirmative defense set 'out 940.09(2) in sec. denied process the defendant due and fair a trial. Gary defendant, Caibaiosai, charged was with
violating 940.09(1) Stats., by operating (a), sec. a motor while vehicle under the of influence an intoxicant which in resulted the death of Janet M. Tunkieicz. He was by jury, a guilty February 1983, tried found on 24, and was imprisonment sentenced serve a term of not to years. exceed three post-conviction
The defendant filed a motion a new grounds trial 940.09(1) on the (a), Stats., that: sec. is unconstitutional; 940.09(2) right against invades his self-incrimination; and was an abuse discretion to 940.09(1) (a), Stats., provides Sec. as follows: “940.09 Homicide intoxicated use of vehicle or firearm. (1) Any person following who par. (a) does either of the or (b) guilty felony: of D Class “(a) Causes the handling death of another vehicle, airgun of a firearm or and while under the influence of an intoxicant or a controlled substance or a combination intoxicant substance;” controlled jury affirma- on the to the give an instruction refuse requested a re- Alternatively, motion defense. tive court hearing, trial After a his sentence. duction appeal. a notice of filed defendant motion and denied appeal to this court appeals certified The court granted certification. and we p.m., approximately defend- at 8:04 On June motorcycle Harley-Davidson driving his 1977 ant was county Highway vicinity 142 in the eastbound on passenger. Highway Tunkieicz as “MB” with Janet his operating defendant was David Dickinson Ahead of the motorcycle passenger in Mink with his Yvonne trial, Mink testified the defendant and sidecar. At the oncoming pulled passed into the lane and them. Tunkieicz estimated that the defendant was somewhere She per 60 and miles hour at the moment that between passed gave confusing Dickinson and Mink he her. also conflicting testimony concerning motorcycle another by Doug operated Hilliary, but it is not clear whether passed Hilliary Hilliary’s the defendant exact what position was at the time of the accident. After the de- completed pass pulled fendant back into the right lane, light Mink observed his brake and then flash motorcycle go gravel along his into the in the curve road and along skid into the three to deep four foot ditch identify side of the road. She did not the location gravel pavement reference to the or the shoulder *4 highway. of motorcycle ap- Defendant’s traveled proximately feet, utility 180 to 200 pole struck a flipped causing over approxi- Tunkieicz to strike a tree mately utility 80 feet from the pole. Janet Tunkieicz instantly. Upon impact was killed the defendant was clear, thrown remained seriously conscious and was not injured.
Evidence was admitted approximately that at 10:09 p.m., sample a blood was taken from the defendant and later tested for registered alcohol content which at 0.13 p.m. percent. At defendant was on a breath- 10:39 tested per- alyzer, 0.11 blood alcohol level was listed as and his cent. Dickinson, presented witness,
The defense one David operator motorcycle of the on which Mink was a passenger. motorcycle He testified was a he mechanic long history owning and had a of operating motor- cycles. motorcycles He he had testified lost control of on passenger riding numerous occasions a and that on motorcycle easily the back could affect the controlla- bility motorcycle. of the He also testified that road con- motorcyclist ditions could also cause to lose control. operating motorcycle Dickinson stated he was his at speed Highway around the limit on 142 when the de- motorcycle passed fendant’s his. He described the acci- by saying dent that it looked like the defendant’s motor- cycle gone gravel” had “towards the cloud dust was raised. Dickinson testified he saw “a cloud dust and it looked like the defendant recovered for a second and then the bike went down in the ditch.” The defend- presented ant no other testify evidence and did not his own behalf. 940.09, designed Stats., protect pub-
Section was type namely particular harm, lic from a of risk and persons intoxicated, op- to hold accountable who become erate a motor vehicle and cause the death of another person. preface In the to the latest revisions laws, expressly drunk stated that purpose “provide its safety was to maximum for all users highway of the of this state” from the harm threatened by “[o]peration by persons of motor vehicles who are under the influence of an intoxicant.” Laws of ch. (a) (13) (b) secs. 2051 1 and 2051 1. 940.09, Stats., there
From the to 1955 creation of sec. only causing the death were two elements offense: being of vehicle and another *5 592 at the time an intoxicant the influence of
under
Peckham,
239, 242,
N.W.
56
v.
263 Wis.
State
accident.
was
held that
there
(1953).
Peckham court
2d 835
negligence
driving
an
while under
automobile
in “the
intoxicating liquor.”
at 243. This
Id.
influence of
was
on an earlier declaration of this
statement
based
Lanferman,
94,
court in Tomasik v.
N.W.
Wis.
(1931)
as follows:
proper control of all those
is without
“One intoxicated
necessary
avoid dan-
which is
the exercise of
faculties
highway.
ger
driving
upon
public
to others while
car
betrays
by
such condition
The
an absence of
and
of a car
one in
any care,
recklessness
and indicates such
disregard of conse-
as evinces an utter
wantonness
quences.” Id. at 97.
285,
Resler,
v.
As this court stated in State
262 Wis.
Moreover, that the “If it can be shown defendant also vehicle, operated must when his was intoxicated he so connection be- assumed that there existed a causal citing tween at the intoxication and the death.” Id. Tomasik. provide statute to revised
In 1955 the guilty an intoxicated was homicide “by another death of if he caused the of a vehicle use un- . . . while negligent operation of a vehicle ... 940.09, 1955. an intoxicant.” Sec. der the influence of change was the only of the offense in the elements negligence “proof in addition requirement of of causal handling while operation or a vehicle] [of [the] *6 an intoxicant.” There was re- the influence of still no quirement the defendant’s intoxication cause 727, 730, Bennett State, death. See v. 2d victim’s Wis. (1972). 196 N.W.2d (1) Stats.,2 (a), present 940.09
Section its form clear- ly person felony that a states commits a Class D who:
(1) another, causes the death of (2) by operation vehicle, of a (3) while under the influence of an intoxicant. laws, performed par- Under our acts with no some particular ticular mental even without a re- state and enough sult, sufficiently are to considered antisocial qualify crime, 940.225(1) (b), Stats., (sex- e.g., as a sec. dangerous using weapon). ual assault a Other acts must accompanied by particular per- be a mental state in the sufficiently antisocial, an formance of act to make them e.g., i.e., (burglary, entry sec. 943.10 with intent felony). instances, steal or commit a In still other acts performed particular with a of mind state must cause give particular sig- a result to them sufficient antisocial treating justify perpetrator nificance to as a crimi- nal, (murder). e.g., sec. 940.01 combining has determined being in an intoxicated of a vehicle with motor per- prohibitum malum and which is is state is conduct vasively in- the conduct is considered antisocial. Since por- herently conceptually evil, into it cannot divided portions which are not which are bad and bad. tions 346.63, Stats., “Operating under entitled Section who, of intoxicants” violated influence is operates vehicle, two, one, a motor at the time is under the of an intoxicant. The influence commission require any negligent the offense does not erratic or driving. driving in- of an Because the influence May 1978, 20, 1817g, 1, 1981, Laws of ch. sec. effective 1983, May 18, in Laws of Act effective 1984. amended prohibitum impossible separate is malum toxicant driving- driving or the from the intoxication from potentially The result is the lethal and intoxication. illegal combination while intoxicated. requires 940.09, Stats., prosecution Section beyond jury prove find reasonable doubt and the between the defendant’s unlawful con- causal connection intoxicated, duct, operation aof motor vehicle while the victim’s death. The statute does not include element of the crime direct causal connection between intoxication, conceptualized the fact of defendant’s as an *7 act, isolated and the victim’s Under death. this statute dangerous inherently activity there is an in which it is reasonably foreseeable that while intoxicated may legislature in result the death of an individual. The activity inherently dangerous has determined this so proof require itof need not causal connection between the defendant’s intoxication and the death. deciding constitutionality statutorily in-
In of the contributing penalty creased where the acts of to delinquency death, of a child resulted in we stated in Roraff, 355, ex Schulter v. State rel. 2d 39 Wis. N.W.2d 25 : particular crime punishment is to be related to “What relating legislature province and the is within the of the governed process cruel no extent is the constitution to the permitted due punishment inhuman and is
process equal protection are afforded. consequences think seri- “We of the act and their may fixing proper ousness be consideration in severity Foreseeability punishment. intent that or specific consequences necessary due occur are not to process or to a crime. which in death fre- Acts result carry quently penalties increased over the same which act death, i.e., felony 940.03, Stats., does not result in murder. We think there if is sufficient connection even only proscribed it is causation between the act of con- tributing delinquency to the of a and death result- child ing delinquency penalty from such to make an increased arbitrary though reasonable and not even death is un- intended or unforeseen.” discussing
In liability strict criminal imposed on per- sons who fail to have a comply regula- license with trafficking drugs when tions in firearms, in we stated Collova, in State v. 79 Wis. 2d 484, 255 N.W.2d (1977) : “But such acts are in and of themselves not innocent engage acts. Persons who choose to in these kinds of dangerous unusual reasonably activities be held highest to the precision, standards care and enforced liability, strict criminal conforming government regulations.” So, operate when chooses to an automobile while under the influence of intoxicants and has done so deliberately knowing through legis- society has its dangerous lature established such combined activities as and when death, may pun- such results in felony. ished as negligence per operate
It a motor vehicle while se Experience under the has estab- influence of intoxicants. accepted it and the lished this conclusion has Stats., 346.63(1) (a), a fact in sec. made such and has *8 felony operation a combined activities D when the class (a). 940.09(1) of in death in The the vehicle results cause substantial factor in the cause of the death is the operation in fact of the of the vehicle while intoxicated. 940.09(1) (a) accepts op- that the conduct Section erating plus under the influence of the con- intoxicants charge. sequences felony will in of death result a people through state their deter- this have 940.09(1) (a) operation mined in sec. that of a motor by vehicle one who is under the influence of intoxicants is a risk will not be tolerated.
596 Stats.,3 provides an affirmative de 940.09(2),
Section causing the death tried for a defendant for fense a motor vehicle while under by operation of another provide meant a intoxicant. It is of an the influence intervening where there is an for the situation defense the intoxicated of the automo between cause4 of an the death individual. defendant ar bile and gues provision affirmative defense that this be exer guaran right against self-incrimination invades his cised to the United States Cons Fifth Amendment teed only possible wit if he He states titution.5 support defense, present in evidence ness able to argument testify. has This forced to then he will be already and denied the United considered States been Florida, v. 83- Supreme in Williams 399 U.S. Court (1970) : Stats., provides follows: 940.09(2), Sec. appears by preponderance if it “(2) has a defense The actor even if have occurred death would of the evidence intoxicant or a con- influence of an under the not been had actor did not have a blood thereof or a combination substance or trolled (b).” under sub. described alcohol concentration “intervening Dictionary (5th 1979) defines ed. Law Black’s as: cause” law, between an antecedent a cause which comes “In criminal independent dependent, consequence; or but be either negate responsibility.” it is sufficient to criminal in either case pro Amendment to the United States Constitution The Fifth : vides capital, for a shall be held to answer or otherwise “No presentment crime, infamous Jury, except unless on a indictment of Grand arising forces, in in the land or naval or in the cases public danger; Militia, in when in actual service time of War or any person subject nor shall the same offence to be twice jeopardy limb; compelled any put in of life or nor shall be against himself, deprived criminal case to be witness nor be liberty, property, life, process law; without due nor shall private property public use, just compen- be taken for without sation.”
597 frequently “The defendant in a criminal trial is forced testify to himself and to call other witnesses in an pre- effort sents his to reduce the risk of conviction. he When identity witnesses, he must reveal their may submit them to cross-examination which in itself prove incriminating may or which furnish the State with incriminating leads to fendant rebuttal evidence. That the de- demanding such a faces dilemma a choice complete between never presenting silence and a defense has thought against been an invasion of the privilege compelled pressures generated by self-incrimination. The may the State’s evidence they be severe but do not vitiate present defendant’s choice to de- [affirmative] fense tempted prove it, though witnesses to even the at- catastrophe defense ends for the defendant. However ‘incriminating’ ‘testimonial’ or the [affirma- proves be, defense to tive] pelled’ it cannot be considered ‘com- meaning within the of the Fifth and Fourteenth Amendments.” speaking The Williams court was of the affirmative (See States, defense of also alibi. Barnes v. United regarding statutory presump- U.S. 846-47 requiring tions and inferences the defendant to intro- evidence.) duce rebuttal
In United States Washington, v. U.S. (1977), Supreme Court held the fifth amendment’s privilege against proscribes only self-incrimination self- “genuine incrimination compulsion obtained of tes timony” proscribes only officially coerced self- availability incrimination. The or attraction of an af firmative compulsion defense does amount not to in the States, constitutional In Yee sense. Hem v. United 178, 185 (1925), U.S. the Court stated: practical point cre- “The that the effect the statute ating presumption compel the accused against put with to be witness himself aside slight compels nothing. The statute It does discussion. possession prohibited no more article make than prima guilt. evidence of It en- leaves the accused facie tirely testify free to not he If chooses. accused *10 necessary only repository of the facts happens to be the arising possession, negative presumption from his to that is not situation the under review does a misfortune which statute is inherent in case. The same but which create might statutory present no itself if there were presumption prima a case of concealment with facie knowledge importation of unlawful were made necessity explanation by The of an evidence. the accused quite compelling this; be would in that in case as but give upon testimony the constraint there, him to would arise here, simply as it arises from the force of circum- any compulsion stances and not from form of forbidden by the Constitution.” recognized Stats., (2), The in sec. 940.09 has intervening there the fact of factors between operating an automobile under the influence of intoxi- cants and death of another the defendant proven by pre- should have that defense available to be approach This avoids ponderance evidence. of the only on the offense based of the mechanistic definition punish consequences even which act and its antisocial degree might some be able to establish those who York, New Patterson v. excuse their conduct. 197, 211-12, (1977). n. 13 U.S. concerns the defendant presented last issue de- give affirmative trial court of the
the refusal jury. Stats., (2), under sec. 940.09 fense instruction portion defense requested the affirmative The defendant denying his In Criminal, I, No. 1185.6 Part of Wis. JI — pertinent provides I, Criminal, Part No. Wis. JI — part: beyond the evi- from you doubt a reasonable are satisfied “If (name of death of caused the the defendant in this case dence you influence, then by operating victim) vehicle while under crime to this has a defense the defendant must determine whether following: by considering the (name victim) if occurred even have death of “Would the been under the influence? had not the defendant
request, the trial court found there was no evidence “that accident and shown this this death would have oc- though had —even he had curred not been under the argues influence.” defendant he was entitled to the affirmative instruction defense since his witness, David Dickinson, passenger that a testified on the back of easily motorcycle controllability could affect vehicle and that road conditions could cause a motor- cycle to leave the road and crash. Dickinson testified *11 gone gravel” the defendant had the “towards and a cloud appeared of was dust raised before it the defendant lost motorcycle. control speculative of the This is all evi- rising incapable prima proof dence of facie of the intervening rising death, cause of the much less to a greater weight of the credible evidence that the death have would occurred even if the had not defendant been under the influence of an intoxicant. Dickinson did not testify anything passenger the defendant’s did operation motorcycle affect the of the or that the road present actually conditions op- affected defendant’s the testify eration. He did not the defendant went over provides charged “Wisconsin law it is a to the defense crime appears by greater weight in this case if it the of the credible evidence that the death would have if occurred even the defendant had not been under the influence. slightly “It is not sufficient if the evidence of this defense is of convincing satisfy greater weight power; go it must further and you or convince before the burden is met. you by greater certainty “If are the satisfied to a reasonable weight victim) (name of the credible evidence that the death of would have even if occurred the defendant had not been under you guilty. influence, then must find the defendant not “Finally, you certainty by if are not satisfied to a reasonable greater weight of the credible the death would evidence influ-, have occurred even if the defendant not been had you beyond ence, and if are satisfied a reasonable doubt that (name by victim) operation defendant caused the death vehicle while the intoxi- was under the influence of an defen4ant you cant, guilty.” then should find the defendant gravel” gravel only and that he went “towards but gravel by was not identified a cloud of dust. The saw being pavement on on the the shoulder Dickinson the road. made has the affirmative Since defense charged available to defendants with a violation of sec. 940.09(1) (a), Stats., judges duty trial have to so in- jury any exonerating struct in all when cases evi- tending dence is received to show that the death would have occurred even if the defendant had not been under the influence of However, intoxicants. case, this there only speculative was by evidence offered defendant’s wit- intervening ness as to an cause with no direct evidence any which showed cause of this death other than the motorcycle by the defendant while he was intoxicated. appellate
The trial and counsels the defendant argued that the affirmative defense should available if the death negligence was caused and, defendant’s therefore, was not caused operation. his intoxicated argument In court, before this position the defendant’s required *12 was that all that is for the affirmative defense to be available is that the accident “would have occurred applica- without the intoxication.” This is not a correct were, tion of the affirmative defense. If it the defend- by claiming negli- ant could himself exonerate he was gent thereby consequences having and avoid the caused operating the death while a motor vehicle while intoxi- negligence cated. The defendant’s not an is to element proven prosecuting be this offense and is not an af- firmative to defense its commission. only by Dickinson was the de- evidence offered speed passing
fendant’s on him between 65 to miles vague gravel per testimony and the as to in the hour paved portion where defendant left the the area the testify passenger defendant’s He not the road. did motorcycle defendant’s control of the or that affected the design or caused the defendant road conditions the roadway impact pole, hit caused and which leave proof passenger to hit tree and be killed. The his speculative for the affirmative was offered defense not direct evidence could not to the rise level re- quired preponderance. If the instruction as to given jury affirmative defense had been to the based evidence, on the jury available it would have allowed the speculate very at the best that the death of Tunkieicz by was caused circumstances other than the defendant’s motorcycle operating the while intoxicated. legislature 940.09(1) (a), Stats., has created sec. continuing keep drivers who are under the in a effort to highway. influence of intoxicants off It reflects public’s and belief attitude drivers are a sinis- such per opera- ter hazard se and if death results from such tion, properly guilty defendants found of the felony. D class
By the Court. —The order circuit court is affirmed. (dissenting). Driv- ABRAHAMSON, J.
SHIRLEY S. deplor- ing intoxicant is while under the influence an dangerous able, antisocial, which the behavior severely. penalize can—and should — years’ Providing imprisonment for a maximum five 1981-82, fine, 940.09(1) (a), $10,000 Stats. any punishes death of another who causes the handling operation or vehicle. while under influence of intoxicant.1 940.09(1) (a), 1981-82, provides Stats. as follows: Sec. Any person following 940.09(1) “Sec. either of the who does felony: par. (a) (b) guilty of a D Class “(a) handling Causes the death of another *13 vehicle, airgun of a firearm or under the influence of and while
602 reading suggests an initial of the
While statute that 940.09(1) (h) legislative response sec. is a valid problem driving, of drunk careful consideration of the majority’s interpretation of interpreta- the statute —an apparently harmony tion which legislative is in with in- tent —demonstrates that the statute violates basic con- cepts process of due and is unconstitutional. dispenses prov-
Sec. 940.09
with
burden
the state’s
ing beyond a reasonable doubt a causal connection be-
wrongful
(here,
tween the
conduct
the intoxication or
faulty operation of a vehicle while under the influence of
intoxicant)
particular
wrongful
and the
result of the
(here, death).
conduct
Under sec. 940.09 the state need
only
prove
operation
of the vehicle caused the
Introductory
death. See Wis. J.I. —Cr.
Comment
In-
2660-2665, p.
(Rel.
6, 6/82).2
15
structions
No.
Thus
940.09(1) (a) provides
person operates
sec.
that when a
of an
substance or
combination
an intoxicant or
controlled
and a controlled substance.”
intoxicant
[Jury
was satisfied
“The
Committee
Instruction]
any
required
con
was to remove
causal
intent
negligence
or the
nection between the death
the defendant’s
being
Thus,
the influence.
the instruction tries
defendant’s
only simple
causal,
point
operation
not
to make the
must be
negligent operation.”
influence,
Wis.
under the
and not
(Rel.
6/82).
6,
J.I.—
J.I. —Cr. No.
note
No.
See also Wis.
Comment, p.
(Rel.
6/82)
2660-2665, Introductory
Cr. No.
No.
(emphasis
original).
in
(cid:127)
causation,
jury in-
see
factor” test
Under
“substantial
quoted infra,
substantial
be more than one
there
struction
State,
given
2d
any
v.
Hart
75 Wis.
factor
case. See
causative
(1977).
371, 397,
cause in
For a discussion of
Accordingly, jury the in this case was instructed regarding causation as follows: “The third requires element of this offense the relation of cause and effect exists between the death of operation and the [the defendant’s of a victim] vehicle. Before such relation of cause and effect can be found to exist, appear operation must the defendant’s of his vehicle producing was a substantial factor in the is, operation death. That the defendant’s must have been a factor which had producing substantial effect in the death aas natural result. required “It is not by any the death was caused drinking eration by any negligent alcohol improper op- required the injury What is vehicle. is that the was caused operation the the vehicle.” defendant’s Wis. J.I. —Cr. No. 1885. Because the prove only state need statutory the three beyond elements of the crime (1) a reasonable doubt — operating vehicle; driver was (2) the driver was operating the vehicle while under the influence of an intoxicant; operation vehicle, but not necessarily faulty operation driver’s of the vehicle or the driver’s condition, intoxicated “caused” the death— following drivers can be convicted of homicide under 940.09(1) (a) :
1. A driver under the influence of an intoxicant kills path A) a child (Vehicle who darts into the of the car parked from between cars.
2. A driver under stops the influence of an intoxicant (Vehicle A) light. car passenger at a red His is killed when Car B rear-ends Vehicle A.
3. A driver under the stops influence of an intoxicant (Vehicle A) light the car proceeds through at a red green. passen- light His turns after intersection A. Vehicle B strikes ger Car killed when intoxicant loses of an the influence A4. driver A) on motorcycle (Vehicle when it skids control when A is killed passenger Vehicle slick. The an oil hits a tree. she examples, for” the “but four
In these *15 operation not have died. The A, would the victim Vehicle causing factor the vic- A a substantial of was Vehicle examples short, in the four death. In each of tim’s (a) prosecute and 940.09(1) allow the state to would by proving the death homicide that convict the driver of True, mere of the vehicle. was caused the operating while under the the vehicle the driver must be intoxicant, operation in that condi- of an influence is, however, is unlawful The fact tion conduct. above, examples forth the driver was each of the four set an (except while under the influence of road, intoxicant) obeying the driver rules no sober) (intoxicated operating A or could have Vehicle prevented the or the death. In each of the four incident examples, (operating the conduct such while unlawful intoxicant) under the of an not influence did cause the death. Nevertheless because does not have the state prove death, that the unlawful conduct the caused con- viction results.
The pro- statute is not rendered constitutional escape vision that allows the driver criminal lia- bility by proving, can, if he or she the death would have occurred even if the driver had not been intoxi- cated. In York, Patterson v. New (1977), 432 197 U.S. Supreme pointed United States Court that al- out though legislatures may state “reallocate of burdens proof by labeling as affirmative defenses at some least of the elements of the crimes now defined in their stat- . . utes . there are obviously constitutional be- limits yond may go regard. which the States not in this is ‘[I]t to declare province of a not within ” guilty a crime.’ guilty presumptively individual omitted.) (Citation No United Su- States Id. at 210. defined Patterson has further preme case since Court legislature’s parameters discre- the constitutional persuasion. See Moran tion to reallocate the burden Ohio, (1984) (Brennan Marshall, v. JJ. 53 L.W. dissenting cert.) denial of from 940.09(1) (a) constitutionality should be of sec. considering authorized in sec. the defense without tested be that 940.09(2). the test seems to Patterson Under completely only delete from the statute if state wrongful concept conduct causation between faulty operation (intoxication of vehicle while (death), intoxicant) harm and the the influence of an persuasion can be shifted to the de- burden fendant.3 Introductory Comment, p. 17 See J.I. —Cr. 2660-2665 Wis. 6/82); Note, Constitutionality (Rel. No. of Affirmative York, Patterson v. New 78 Colum. L. Rev. after
Defenses *16 (1978). conceptualization defense is majority’s of the affirmative The opinion majority the affirma- perplexing. states that in itself 940.09(2) a defendant available to is not tive defense under sec. intoxi- the without that the death would have occurred who shows were, himself exonerate “if it the defendant could cation because consequences thereby by claiming negligent avoid the he was operating having a motor vehicle while the death while of caused Page statement be- understand this intoxicated.” 600. I do not 940.09(2) expressly a de- “The actor has states that cause sec. appears by preponderance that the the evidence it of fense if been under the actor had not would have occurred even death if substance an intoxicant or a controlled the influence of alcohol concentration a blood thereof or did not have combination majority supplied.) (1) (b).” (Emphasis under sub. described authority cogent explanation its denial for cites no and offers no explain majority plain fails to the words of the statute. The of type defense. allow the affirmative of circumstances would what apparently majority opinion, In the state’s brief contrast to the acknowledges the when affirmative defense is available that the Requiring prove the to causation between the state wrongful principle the harm conduct and basic of is jurisprudence.4 940.09(1) (a) Because criminal does prove require connection, not the state to this causal 940.09(2) is prove effect of sec. the accused must system himself herself In justice, innocent. our prove guilt; require state must no statute can the indi- prove vidual to innocence. my opinion punishes
In
statute which
for
this
driver
requiring
prove
without
to
homicide
state
the causal
wrongful
(that
is,
connection between
conduct
the driv-
faulty operation
er’s intoxication or
driver’s
of the
intoxicant)
vehicle while under the influence of
(death)
the harm
is unconstitutional.
Proof of this
culpability
critical to
for homicide
causal connection is so
conviction
homicide
be obtained with-
if a
for
causality
proof
out
violates
this
the statute
basic
right
examples
what
and fair. As the
notions of
is
four
illustrate,
the driver is blameless of homicide unless there
wrongful
proof
is
of a
connection
causal
between the
harm;
connection,
culpa-
without this
conduct
bility necessary
justify
a conviction for homicide is
missing.
examples
From those
is
clear that causal
culpability,
not
culpability
associate with
intoxicated,
required
while
convict
homicide.
produce
can
defendant
evidence that
the accident was caused
negligent operation of the vehicle that would have occurred even
if the defendant was not under
the influence of an intoxicant.
appeals, pp.
State’s brief to the court of
33-34.
Hall,
Principles
See
Law,
(1947);
General
Criminal
ch. 8
Scott,
175,
25, p.
LaFave &
;
Criminal Law sec.
sec. 35
Responsibility
Sayre,
Another,
Criminal
the Acts
43 Harv.
(1930).
L. Rev.
Requiring
prove
corollary
state to
causation is a
principle
prove every
necessary
the state must
fact
to con-
*17
charged guilt beyond
stitute the crime
a reasonable doubt before
imprison
it can
Winship,
(1970).
individual.
In re
I conclude beyond powers. gone its constitutional has pun- person while intoxicated should be who drives blameworthy. A convicted of The driver is ished. punished operating a vehicle while intoxicated is under pen- law a civil forfeiture or a criminal with Wisconsin alty depending on whether is a first offense. The drunk driver be convicted of homicide if the state beyond proves doubt that reasonable his intoxication faulty or while under the influence of an intoxi- summary, cant caused the death. In I conclude that this providing imprisonment up years statute to 5 requiring prove without state causal connection wrongful (that is, between defendant’s conduct intoxi- faulty operation cation or of the vehicle while under the intoxicant) resulting influence of an and the harm (death) violates basic notions of embodied in fairness process due clause and is unconstitutional. light accept analysis, I
In can not either the this majority’s I can state’s defenses of this statute. argument accept con not the state’s that a direct causal (or nection between the intoxication and death between faulty operation death) required is not because sec. 940.09 creates version of the crime misdemeanor- manslaughter. state the crime of views misde meanor-manslaughter eliminating causation and as basing liability killing for a homicide on the fact that the during pro occurs act commission of some other by the scribed law.5
Although not some courts have held that causation is required misdemeanor-manslaughter felony-murder, relieving several commentators conclude state of proving proscribed the burden of causation between majority opinion 5 I do not understand the discussion in the characterizing operating the offense of a motor vehicle while prohibitum. Pages influence of an intoxicant as malum 594. *18 608 comport generally
conduct and
harm
does not
with
accepted principles
See, e.g.,
of criminal
law.
&
LaFave
Scott,
Law,
264,
35, p.
596,
Criminal
sec.
79, pp.
sec.
(1972); Wilner,
601-602
Unintentional Homicide in the
Act,
Commission
87 U. Pa. L. Rev. 811
Unlawful
(1939).
felony-murder
Wisconsin’s
statute, sec. 940.02
(2), comports
view;
requires
with the commentators’
prove
the state to
that the death occurred
a
“as
natural
probable consequence
of the commission of or at
tempt
felony.”
commit a
to
State,
See
v.
88
Hoffman
166, 179,
;
Wis.
(1894)
59
State,
N.W. 588
Brook v.
21
32, 41,
Wis.
(1963);
2d
123
Boyer
N.W.2d 535
v.
State,
Wis. 2d
(1979).6
The to invoke strict eliminating means of the need causation. The con- cepts negligence per liability, criminal se strict by majority page 595, which are discussed at re- late, however, scienter, to the element of not causa- tion. is not in Scienter the determinative issue this case. liability crimes, proved Even in strict causation must be punishes if the statute a harm.7 majority opinion imply can read also be that 940.09(1) (a) does not eliminate the element of (or faulty opera- causation between the intoxication tion of a vehicle while under the influence of an intoxi- majority’s misplaced. reliance on the Schulter case is Pages 594, required 595. The statute construed in that case that consequence crime, is, the death be a that the death be 940.09(1) (a) caused the commission of the crime. Sec. re quires that death be caused of the vehicle. Operating a vehicle is not in and of itself a crime. 2.03(4) (Proposed Draft Official Penal Code sec. See Model liability liability 1962), providing strict crimes —that pollution stream) {e.g., is an a harm without scienter —if liability offense, the harm then there is no unless element .consequence probable the actor’s “is conduct.” implicitly incorporates cant) death, rather and the but opinion majority of causation. The seems the element premise say rests on the that a direct the statute inheres between intoxication and death. causal connection *19 Pages 594.8 reasoning 940.09(1) (a)
This must fail. If sec. is incorporating, silently, mandatory as albeit viewed presumption rebuttable the intoxicated condition death, presumption caused the the would an be unconsti process tutional denial due of because shifts to the persuading defendant the of the burden finder to fact as Montana, an element of the crime. Sandstrom v. 442 U.S. ; State, (1979) 475-78, 510 Muller v. 2d Wis. (1980). N.W.2d 570 Anyone driving reprehensible conduct. who is
Drunk an intoxi- operates a while influence of vehicle under the injury not punished, whether or there is cant should be drunk property. the driver causes When to punishment The drunk injury, should be increased. however, punished not, homicide driver should faulty operation while the driver’s intoxication or unless of an the death. the influence intoxicant caused (a) 940.09(1) permits punish Because sec. state years’ imprisonment with 5 when for homicide driver con majority opinion causal find sufficient seems to driving negligent by speaking act of the in the nection statute instead the death conduct which causes while intoxicated as causing operation conduct speaking of the vehicle driving under proffered that “because rationale is the death. The impossible -prohibitum it is is malum intoxicant the influence driving driving separate or the from from the intoxication Pages 593, 594. the intoxication.” majority defense opinion the affirmative also asserts where provided “for the situation for in 940.09 is available intervening the intoxicated between there is an cause Page 596. See the death of the individual.” the automobile and presup- “intervening Referring pp. to an cause” also 598-600. while poses condition intoxicated defendant’s an antecedent cause. was by chance, occurs I conclude statute is uncon- death Accordingly I must dissent from the stitutional. court’s opinion.
MOTION FOR RECONSIDERATION. Denied. PER CURIAM. The issue defendant-appel- raised lant in his motion for reconsideration was considered court to be meritless. The motion for reconsideration denied. Disciplinary Proceedings Against the Matter In Wood, Attorney Warren at W. Law.
Supreme Court *20 Argued No. November 84-067-D. 1984. February 27, 1985. Decided (Also reported 220.) in 363 N.W.2d