Wis JI-Criminal 1190

Statutory Definition of the Crime

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

causes the death of another by the (operation) (handling) of (a firearm) (an airgun) while

under the influence of an intoxicant.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 elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant [(operated) (handled)] [(a firearm)2 (an airgun)3].

2. The defendant’s (operation) (handling) of the (firearm) (airgun) caused the death

of (name of victim).

“Cause” means that the defendant’s (operation) (handling) of the (firearm)

(airgun) was a substantial factor4 in producing the death.

3. The defendant was under the influence of an intoxicant at the time the defendant

(operated) (handled) the (firearm) (airgun).

Definition of “Under the Influence of an Intoxicant”

“Under the influence of an intoxicant” means that the defendant’s ability to [(operate)

(handle)] [(a firearm) (an airgun)] was materially impaired because of consumption of an

alcoholic beverage.5

Not every person who has consumed alcoholic beverages is “under the influence,” as

that term is used here. What must be established is that the person has consumed a sufficient

amount of alcohol to cause the person to be less able to exercise the clear judgment and

steady hand necessary to [(operate) (handle)] [(a firearm) (an airgun)].

It is not required that impaired ability to (operate) (handle) be demonstrated by

particular unsafe acts. What is required is that the person’s ability to safely (operate)

(handle) the (firearm) (airgun) be materially impaired.

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 an incident is evidence of the defendant’s alcohol

concentration at the time of the incident.6

WHERE TEST RESULTS SHOWING MORE THAN 0.04 BUT LESS THAN

0.08 GRAMS HAVE BEEN ADMITTED, THE EVIDENCE IS RELEVANT

BUT DOES NOT HAVE PRIMA FACIE EFFECT. SEE WIS

JI-CRIMINAL 232.7

WHERE TEST RESULTS SHOWING 0.08 GRAMS OR MORE HAVE BEEN

ADMITTED,8 AND THERE IS NO ISSUE RELATING TO THE

DEFENDANT’S POSITION ON THE “BLOOD-ALCOHOL CURVE,”9 THE

JURY SHOULD BE INSTRUCTED AS FOLLOWS:

[If you are satisfied beyond a reasonable doubt that there was [.08 grams or more of

alcohol in 100 milliliters of the defendant’s blood] [.08 grams or more of alcohol in 210

liters of the defendant’s breath] at the time the test was taken, you may find from that fact

alone that the defendant was under the influence of an intoxicant at the time of the alleged

incident, 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 was

under the influence of an intoxicant at the time of the alleged incident unless you are

satisfied of that fact beyond a reasonable doubt.]

IF AN APPROVED TESTING DEVICE IS INVOLVED, THE FOLLOWING

MAY BE ADDED:10

[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:11

[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),12 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 been under the

influence of an intoxicant.

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

certainty by the greater weight of the credible evidence13 that this defense is established.

“By the greater weight of the evidence” [is meant] [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.14

[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 care15 does not by itself

provide a defense to the crime charged against the defendant.16 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 been under the influence of an

intoxicant 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.17]