Wis JI-Criminal 1263

Statutory Definition of the Crime

Section 940.25(1)(b) of the Criminal Code of Wisconsin is violated by one who causes

great bodily harm to another by the operation 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 elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant operated 2 a vehicle. 3

"Operate" means the physical manipulation or activation of any of the controls

of a vehicle necessary to put it in motion. 4

2. The defendant's operation of a vehicle caused great bodily harm to (name of

victim).

"Cause" means that the defendant's operation of a vehicle was a substantial

factor 5 in producing the great bodily harm.

"Great bodily harm" means serious bodily injury. 6 [Injury which creates a

substantial risk of death, or which causes serious permanent disfigurement, or which

causes a permanent or protracted loss or impairment of the function of any bodily

member or organ, or other serious bodily injury is great bodily harm.]

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

[.08 grams or more of alcohol in 210 liters of the person's breath].

[.08 grams or more of alcohol in 100 milliliters of the person's blood].

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. 8

WHERE TEST RESULTS SHOWING 0.08 GRAMS OR MORE HAVE BEEN

ADMITTED 9 AND THERE IS NO ISSUE RELATING TO THE DEFENDANT'S

POSITION ON THE "BLOOD-ALCOHOL CURVE,"10 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 had a prohibited alcohol concentration at the time of the alleged 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 prohibited

alcohol concentration at the time of the alleged operating, unless you are satisfied of that fact

beyond a reasonable doubt.]

IF AN APPROVED TESTING DEVICE IS INVOLVED, THE FOLLOWING

MAY BE ADDED: 11

[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

940.25(2), USE THE FOLLOWING CLOSING: 12

[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

940.25(2), 13 USE THE FOLLOWING:

[Consider Whether the Defense is Proved]

[Wisconsin law provides that it is a defense to this crime if the great bodily harm 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 14 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. 15

[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 16 does not by itself

provide a defense to the crime charged against the defendant. 17 Consider evidence of the

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

bodily harm 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. 18]