Wis JI-Criminal 1186A

Statutory Definition of the Crime

Section 940.09(1)(b) of the Criminal Code of Wisconsin is violated by one who

causes the death of another by the operation or handling of a vehicle while that person

has a prohibited alcohol concentration. 1

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following [three] [four] 2

elements were present.

Elements of the Crime That the State Must Prove

1. The defendant operated 3 a vehicle. 4

“Operate” means the physical manipulation or activation of any of the

controls of a vehicle necessary to put it in motion. 5

2. The defendant’s operation of a vehicle caused the death of (name of victim).

“Cause” means that the defendant’s operation of a vehicle was a substantial

factor 6 in producing the death.

3. The defendant had a prohibited alcohol concentration at the time the defendant

operated a vehicle.

Definition of “Prohibited Alcohol Concentration”

“Prohibited alcohol concentration” means 7

[.02 grams or more of alcohol in 210 liters of the person’s breath].

[.02 grams or more of alcohol in 100 milliliters of the person’s blood].

NOTE: THE DEFENDANT’S ADMISSION OF THREE OR MORE PRIOR

CONVICTIONS DISPENSES WITH THE NEED FOR PROOF OF THE

FOLLOWING ELEMENT. IF THERE IS AN ADMISSION, DO NOT

INSTRUCT ON THIS ELEMENT AND PROCEED TO THE PARAGRAPH

CAPTIONED “HOW TO USE THE TEST RESULT EVIDENCE.” 8

[4. The defendant had three or more convictions, suspensions, or revocations, as

counted under § 343.307(1).] 9

IF THE FOURTH ELEMENT IS INCLUDED AND IF REQUESTED

BY THE DEFENDANT, THE FOLLOWING CAUTIONARY

INSTRUCTION SHOULD BE GIVEN: 10

[Evidence has been received that the defendant had prior convictions,

suspensions, or revocations. This evidence was received as relevant to the status

of the defendant’s driving record, which is an issue in this case. It must not be

used for any other purpose and, particularly, you should bear in mind that

conviction, suspension, or revocation at some previous time is not proof that the

defendant operated a motor vehicle with a prohibited alcohol concentration on

this occasion.]

How to Use the Test Result Evidence

The law states that the alcohol concentration in a defendant’s (breath) (blood) (urine)

sample taken within three hours of operating a vehicle is evidence of the defendant’s

alcohol concentration at the time of the operating. 11

IF AN ALCOHOL TEST IS INVOLVED, THE FOLLOWING MAY BE

ADDED: 12

[The law recognizes that the testing device used in this case uses a scientifically

sound method of measuring the alcohol concentration of an individual. The State is not

required to prove the underlying scientific reliability of the method used by the testing

device. However, the State is required to establish that the testing device was in proper

working order and that it was correctly operated by a qualified person.]

IF THERE IS NO EVIDENCE OF THE DEFENSE DEFINED BY SECTION

940.09(2), USE THE FOLLOWING CLOSING: 13

[Jury’s Decision]

[If you are satisfied beyond a reasonable doubt that all the elements of this offense

have been proved, you should find the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.]

IF THERE IS EVIDENCE OF THE DEFENSE DEFINED BY SECTION

940.09(2), 14 USE THE FOLLOWING:

[Consider Whether the Defense is Proved]

[Wisconsin law provides that it is a defense to this crime if the death would have

occurred even if the defendant had been exercising due care and had not had a prohibited

alcohol concentration.

The burden is on the defendant to prove by evidence which satisfies you to a

reasonable certainty by the greater weight of the credible evidence 15 that this defense is

established.

“By the greater weight of the evidence” is meant evidence which, when weighed

against that opposed to it, has more convincing power. “Credible evidence” is evidence

which in the light of reason and common sense is worthy of belief.]

ADD THE FOLLOWING IF REQUESTED AND IF EVIDENCE OF THE

CONDUCT OF THE VICTIM HAS BEEN INTRODUCED AS RELEVANT

TO THE AFFIRMATIVE DEFENSE. DO NOT GIVE WITHOUT CLEAR

JUSTIFICATION. 16

[Evidence has been received relating to the conduct of (name of victim) at the time of

the alleged crime. Any failure by (name of victim) to exercise due care 17 does not by

itself provide a defense to the crime charged against the defendant. 18 Consider evidence

of the conduct of (name of victim) in deciding whether the defendant has established that

the death would have occurred even if the defendant had not had a prohibited alcohol

concentration and had been exercising due care.]

Jury’s Decision

[If you are satisfied to a reasonable certainty by the greater weight of the credible

evidence that this defense is proved, you must find the defendant not guilty.

If you are not satisfied to a reasonable certainty by the greater weight of the credible

evidence that this defense is proved and you are satisfied beyond a reasonable doubt that

all elements of this offense have been proved, you should find the defendant guilty.

If you are not satisfied beyond a reasonable doubt that all elements of this offense

have been proved, you must find the defendant not guilty.] 19