Wis JI-Criminal 1187

Statutory Definition of the Crime

Section 940.09(1)(am) 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 the person has

a detectable amount of a restricted controlled substance in his or her blood.

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 elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant operated1 a vehicle.2

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

of a vehicle necessary to put it in motion.3

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

factor4 in producing the death.

3. The defendant had a detectable amount of a restricted controlled substance in his

or her blood at the time the defendant operated a vehicle.

(Name restricted controlled substance) is a restricted controlled substance.5

GIVE THE FOLLOWING IF DELTA-9-TETRAHYDROCANNABINOL

IS THE ALLEGED RESTRICTED CONTROLLED SUBSTANCE.

[Delta-9-tetrahydrocannabinol is considered a restricted controlled substance

if it is at a concentration of one or more nanograms per milliliter of a person’s

blood.]

How to Use the Test Result Evidence

The law states that a chemical analysis showing a detectable amount of a restricted

controlled substance in a defendant’s blood sample is evidence of the presence of a

detectable amount of a restricted controlled substance in a defendant’s blood at the time of

the operating.6

USE THE FOLLOWING IF APPROPRIATE:

[If you are satisfied beyond a reasonable doubt that there was a detectable amount of

(name restricted controlled substance) in the defendant’s blood at the time the sample was

taken, you may find from that fact alone that the defendant had a detectable amount of

(name restricted controlled substance) in (his) (her) blood at the time of the operating, but

you are not required to do so. You, the jury, are here to decide this question on the basis of

all the evidence in this case, and you should not find that the defendant had a detectable

amount of (name restricted controlled substance) in (his) (her) blood at the time of the

alleged operating unless you are satisfied of that fact beyond a reasonable doubt.]

IF THERE IS NO EVIDENCE OF THE DEFENSE DEFINED BY SECTION

940.09(2), USE THE FOLLOWING CLOSING:7

[Jury’s Decision]

[If you are satisfied beyond a reasonable doubt that all three 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),8 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 detectable

amount of (name restricted controlled substance) in his or her blood.

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

certainty by the greater weight of the credible evidence9 that this defense is established.

“By the greater weight of the evidence” means 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.10

[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 care11 does not by itself

provide a defense to the crime charged against the defendant.12 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 detectable amount of (name

restricted controlled substance) in his or her blood.]

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.13]