Section 940.25 - Injury by intoxicated use of a vehicle(1) Any person who does any of the following is guilty of a Class F felony: (a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.(am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01(46m).(bm) Causes great bodily harm to another human being by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.(c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.(cm) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.(d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01(46m).(e) Causes great bodily harm to an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.(1m)(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); or any combination of sub. (1) (c), (cm), or (e) for acts arising out of the same incident or occurrence.(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33(13) (b) 2 and 3., under s. 23.335(23) (c) 2 and 3., under s. 30.80(6) (a) 2 or 3., under ss. 343.30(1q) and 343.305 or under s. 350.11(3) (a) 2 and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require.(2)(a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e).(b) In any action under this section that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33(4t), 23.335(12) (j), 30.686, 346.635 or 350.106.Amended by Acts 2015 ch, 170,s 80, eff. 10/1/2016.Amended by Acts 2015 ch, 170,s 79, eff. 10/1/2016.1977 c. 193, 272; 1981 c. 20, 184; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 277; 1993 a. 317, 428, 478; 1995 a. 425, 436; 1997 a. 237, 295; 1999 a. 32, 109, 186; 2001 a. 16, 109; 2003 a. 30, 97; 2005 a. 253; 2009 a. 100.For legislative intent see chapter 20, laws of 1981, section 2051 (13).
The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983). The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (1990). The offense under sub. (1) (am) has 2 elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in his or her blood; and 2) the defendant's operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieves the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature's enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372. The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that he or she is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372. "Materially impaired" as used in the definition of under the influence of an intoxicant" in s. 939.22(42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court's response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.