Wis. Stat. § 940.09
Homicide by intoxicated use of vehicle or firearm
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940.09(1)(a)(a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(am)(am) 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.
940.09(1)(b)(b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
940.09(1)(bm)(bm) Causes the death of another 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.
940.09(1)(c)(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(cm)(cm) Causes the death of an unborn child 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.
940.09(1)(d)(d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
940.09(1)(e)(e) Causes the death of 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.
940.09(1c)(a)(a) Except as provided in par. (b), a person who violates sub. (1) is guilty of a Class D felony. Upon conviction, the court shall impose a bifurcated sentence under s. 973.01 and the term of confinement in prison portion of the bifurcated sentence shall be at least 5 years except that a court may impose a term of confinement that is less than 5 years if the court finds a compelling reason and places its reason on the record.
940.09(1c)(b)(b) A person who violates sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2). Upon conviction, the court shall impose a bifurcated sentence under s. 973.01 and the term of confinement in prison portion of the bifurcated sentence shall be at least 5 years except that a court may impose a term of confinement that is less than 5 years if the court finds a compelling reason and places its reason on the record.
940.09(1d)(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.
940.09(1g)(a)(a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(am)(am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1g)(b)(b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
940.09(1g)(c)(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(cm)(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
940.09(1g)(d)(d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
940.09(1m)(a)(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); any combination of sub. (1) (c), (cm), or (e); any combination of sub. (1g) (a), (am), or (b); or any combination of sub. (1g) (c), (cm), or (d) for acts arising out of the same incident or occurrence.
940.09(1m)(b)(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. and 3., under s. 343.307 (1) 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, and sub. (1g) (a), (am), (b), (c), (cm), and (d) each require proof of a fact for conviction which the others do not require.
940.09(2)(a)(a) In any action under this section, the defendant has a defense if he or she proves by a preponderance of the evidence that the death 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) or (1g) (b) or (d).
940.09(2)(b)(b) In any action under sub. (1) (am) or (cm) or (1g) (am) or (cm) that is based on the defendant allegedly having a detectable amount of methamphetamine or 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 or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.
940.09(3)(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.
940.09 HistoryHistory: 1977 c. 173; 1981 c. 20, 184, 314, 391; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 32, 277; 1993 a. 317; 1995 a. 425, 436; 1997 a. 237, 295, 338; 1999 a. 32, 109; 2001 a. 16, 109; 2003 a. 30, 97; 2009 a. 100; 2015 a. 170; 2015 a. 197 s. 51; 2019 a. 31.
940.09 NoteNOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
940.09 AnnotationProbable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979).
940.09 AnnotationEach death caused by an intoxicated operator’s negligence is chargeable as a separate offense. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).
940.09 AnnotationBecause driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver’s intoxication and the victim’s death. Sub. (2) does not violate the right against self-incrimination. State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985). See also State v. Fonte, 2005 WI 77, 281 Wis. 2d 654, 698 N.W.2d 594, 03-2097.
940.09 AnnotationThe definition of vehicle in s. 939.22 (44) applies to this section and includes a tractor. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).
940.09 AnnotationSub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 Wis. 2d 432, 538 N.W.2d 821 (Ct. App. 1995), 94-2187.
940.09 AnnotationThe defense under sub. (2) does not require an intervening cause; a victim’s conduct can be the basis of the defense. The s. 939.14 rule that contributory negligence is not a defense to a crime does not prevent considering the victim’s negligence in relation to causation. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187.
940.09 AnnotationSecond-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
940.09 AnnotationThe common law “year-and-a-day rule” that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is prospectively abrogated. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.09 AnnotationDefendant’s conviction under sub. (1) (c) for causing the death of an unborn child was not unconstitutional. The court rejected the assertion that s. 939.75 (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson, 2012 WI App 101, 344 Wis. 2d 126, 822 N.W.2d 484, 11-1399.
940.09 AnnotationWhen a blood test reveals the presence of a restricted controlled substance, homicide by intoxicated use of a vehicle is a type of strict liability offense; the state only need prove that the restricted controlled substance was present and the defendant caused the death of another by using a motor vehicle. Though generally structured as a strict liability offense, sub. (2) (a) provides a defense for when there is an intervening cause between the intoxicated operation of the automobile and the death of an individual. A seizure can, as a general matter, be a defense to the charge. State v. Raczka, 2018 WI App 3, 379 Wis. 2d 720, 906 N.W.2d 722, 16-1057.
940.09 AnnotationIn this case, the defendant had a history of seizures and failed to take his seizure medication as prescribed. If failing to take the medication was negligent and this negligence caused the seizure and the crash, then the statute offers no defense. However, whether the defendant’s failure to take his medication was a failure to exercise due care is a question of fact; it cannot be presumed as a matter of law. State v. Raczka, 2018 WI App 3, 379 Wis. 2d 720, 906 N.W.2d 722, 16-1057.
940.09 AnnotationThis statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (1986).
940.09 AnnotationHomicide By Intoxicated Use Statute. Sines. Wis. Law. Apr. 1995.
Notes of Decisions
Cited in 116
cases (22 in the last 5 years), 1972–2026 · leading case: State v. Lohmeier
State v. Lohmeier (1996)
“Lohmeier of two counts of homicide by operation of a vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 940.09 (1)(a) (1991-92). [2] The State argues that the circuit court judge did not effectively deny Lohmeier a meaningful opportunity for…”
State v. Muckerheide (2007)
“Muckerheide (Muckerheide) of homicide by use of a motor vehicle while having a prohibited blood alcohol concentration, contrary to Wis. Stat. §§ 940.09 (1)(b) and (1c)(b)(2002-04).”
State v. Rabe (1980)
“Rabe, with four counts of homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09, Stats. The state seeks review of a pretrial order of the trial court consolidating the four counts charged in the information into a single count.”
State v. Kyle Lee Monahan (2018)
“The State subsequently charged Monahan with three counts of criminal conduct: (1) homicide by intoxicated use of a motor vehicle contrary to Wis. Stat. § 940.09 (1)(a) (2011-12)3; (2) homicide by 2 The court of appeals also reversed a circuit court order granting Monahan's…”
State v. Gallion (2004)
“Wis. Stat. § 940.09 (1c)(a). This dramatic change in the law, Gallion reasons, requires resentencing.”
State v. Fonte (2005)
“The State seeks review of a court of appeals decision reversing the conviction of Peter Fonte for homicide by intoxicated operation of a vehicle under Wis. Stat. § 940.09 (2001-02), 1 after a boating accident that resulted in the death of one of Fonte's friends.”
State v. Leopoldo R. Salas Gayton (2016)
“See Wis. Stat. § 940.09 (1m)(a)-(b). The circuit court also explained the dismissal at sentencing.”
State v. Caibaiosai (1985)
“In the preface to the latest revisions of the drunk driving laws, the legislature expressly stated that its purpose was to "provide maximum safety for all users of the highway of this state" from the harm threatened by "[o]peration of motor vehicles by persons who are under the…”
State v. Heft (1994)
“Heft, who was convicted of homicide by intoxicated use of a vehicle, under sec. 940.09(1), Stats., [1] claimed she was denied her right to due process when the circuit court refused to require a witness, Daniel Cisler (Cisler), to invoke his fifth amendment privilege in the…”
State v. Balliette (2011)
“Balliette was subsequently charged with homicide by intoxicated use of a motor vehicle in violation of Wis. Stat. § 940.09 (l)(a) and homicide by use of a motor vehicle with a prohibited alcohol concentration in violation of Wis.”
State v. Michael R. Tullberg (2014)
“The information differed from the complaint only in that it replaced the second-degree reckless homicide charge with a charge of homicide by use of a vehicle with a prohibited alcohol concentration,13 included a new charge of hit and run resulting in death,14 and omitted the…”
State v. Christopher Joseph Allen (2017)
“The State charged Allen with: (1) homicide by intoxicated use of a vehicle in violation of Wis. Stat. § 940.09 (l)(a); (2) homicide by intoxicated use of a vehicle with a prohibited alcohol concentration in violation of Wis.”
— Wis. Stat. § 940.09(1) — 16 cases
State v. Heft (1994)
“Heft, who was convicted of homicide by intoxicated use of a vehicle, under sec. 940.09(1), Stats., [1] claimed she was denied her right to due process when the circuit court refused to require a witness, Daniel Cisler (Cisler), to invoke his fifth amendment privilege in the…”
State v. Caibaiosai (1985)
“In the preface to the latest revisions of the drunk driving laws, the legislature expressly stated that its purpose was to "provide maximum safety for all users of the highway of this state" from the harm threatened by "[o]peration of motor vehicles by persons who are under the…”
State v. Greenwold (1994)
State v. Kramsvogel (1985)
State v. Greenwold (1994)
— Wis. Stat. § 940.09(1)(a) — 18 cases
State v. Heft (1994)
“Heft, who was convicted of homicide by intoxicated use of a vehicle, under sec. 940.09(1), Stats., [1] claimed she was denied her right to due process when the circuit court refused to require a witness, Daniel Cisler (Cisler), to invoke his fifth amendment privilege in the…”
State v. Cornelius (1989)
State v. Caibaiosai (1985)
“In the preface to the latest revisions of the drunk driving laws, the legislature expressly stated that its purpose was to "provide maximum safety for all users of the highway of this state" from the harm threatened by "[o]peration of motor vehicles by persons who are under the…”
— Wis. Stat. § 940.09(1)(am) — 7 cases
State v. Jacobs (2012)
State v. Walter L. Johnson (2025)
State v. George Maurice Reel (2025)
State v. Smith (2018)
— Wis. Stat. § 940.09(1)(b) — 10 cases
State v. Kyle Lee Monahan (2018)
“The State subsequently charged Monahan with three counts of criminal conduct: (1) homicide by intoxicated use of a motor vehicle contrary to Wis. Stat. § 940.09 (1)(a) (2011-12)3; (2) homicide by 2 The court of appeals also reversed a circuit court order granting Monahan's…”
State v. Gallion (2004)
“Wis. Stat. § 940.09 (1c)(a). This dramatic change in the law, Gallion reasons, requires resentencing.”
State v. Dawn M. Prado (2021)
State v. Gallion (2002)
— Wis. Stat. § 940.09(1)(c) — 1 case
State v. Kennedy (1986)
— Wis. Stat. § 940.09(1c)(a) — 2 cases
State v. Jose Luis Zuniga (2025)
— Wis. Stat. § 940.09(1m) — 1 case
State v. Lohmeier (1996)
“Lohmeier of two counts of homicide by operation of a vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 940.09 (1)(a) (1991-92). [2] The State argues that the circuit court judge did not effectively deny Lohmeier a meaningful opportunity for…”
— Wis. Stat. § 940.09(1m)(b) — 1 case
State v. Brian R. Sullivan (2023)
— Wis. Stat. § 940.09(2) — 12 cases
State v. Lohmeier (1996)
“Lohmeier of two counts of homicide by operation of a vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 940.09 (1)(a) (1991-92). [2] The State argues that the circuit court judge did not effectively deny Lohmeier a meaningful opportunity for…”
State v. Heft (1994)
“Heft, who was convicted of homicide by intoxicated use of a vehicle, under sec. 940.09(1), Stats., [1] claimed she was denied her right to due process when the circuit court refused to require a witness, Daniel Cisler (Cisler), to invoke his fifth amendment privilege in the…”
State v. Caibaiosai (1985)
“In the preface to the latest revisions of the drunk driving laws, the legislature expressly stated that its purpose was to "provide maximum safety for all users of the highway of this state" from the harm threatened by "[o]peration of motor vehicles by persons who are under the…”
State v. Balliette (2011)
“Balliette was subsequently charged with homicide by intoxicated use of a motor vehicle in violation of Wis. Stat. § 940.09 (l)(a) and homicide by use of a motor vehicle with a prohibited alcohol concentration in violation of Wis.”
State v. Kircher (1994)
— Wis. Stat. § 940.09(2)(a) — 7 cases
State v. Muckerheide (2007)
“Muckerheide (Muckerheide) of homicide by use of a motor vehicle while having a prohibited blood alcohol concentration, contrary to Wis. Stat. §§ 940.09 (1)(b) and (1c)(b)(2002-04).”
State v. Jacobs (2012)
State v. Dixon (2018)
State v. Brian R. Sullivan (2023)
— Wis. Stat. § 940.09(2)(b) — 1 case
State v. Brian R. Sullivan (2023)
— Wis. Stat. § 940.09(l)(a) — 14 cases
State v. Heft (1994)
“Heft, who was convicted of homicide by intoxicated use of a vehicle, under sec. 940.09(1), Stats., [1] claimed she was denied her right to due process when the circuit court refused to require a witness, Daniel Cisler (Cisler), to invoke his fifth amendment privilege in the…”
State v. Peterson (1998)
State v. Lechner (1998)
State v. Cornelius (1989)
— Wis. Stat. § 940.09(l)(b) — 10 cases
State v. Wille (1994)
State v. Gallion (2004)
“Wis. Stat. § 940.09 (1c)(a). This dramatic change in the law, Gallion reasons, requires resentencing.”
State v. Stenzel (2004)
State v. Kircher (1994)
— Wis. Stat. § 940.09(l)(c) — 2 cases
State v. Benson (2012)
State v. Kletzien (2008)
— Wis. Stat. § 940.09(lc) — 1 case
State v. Kletzien (2008)
— Wis. Stat. § 940.09(lm) — 2 cases
State v. Lohmeier (1996)
“Lohmeier of two counts of homicide by operation of a vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 940.09 (1)(a) (1991-92). [2] The State argues that the circuit court judge did not effectively deny Lohmeier a meaningful opportunity for…”
State v. Sohn (1995)
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