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§ 940.10(1), Homicide by Negligent Operation of Vehicle — Elements

State v. Nicole Schutte, 2006 WI App 135, PFR filed 7/21/06
For Schutte: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶19      Wisconsin Stat. § 940.10(1) provides that a person who “causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.” The term “negligent” as used in § 940.10 requires proof of “criminal negligence.” See Wis. Stat. § 939.25(2). In order to prove a violation of § 940.10, the State must establish beyond a reasonable doubt that (1) the defendant operated a vehicle; (2) the defendant operated the vehicle in a criminally negligent manner; and (3) the defendant’s criminal negligence caused a person’s death. See Johannes, 229 Wis. 2d at 221 n.2; Wis JI—Criminal 1170. The meaning of the term “criminal negligence” is thus central to our disposition of Schutte’s claim that the State produced insufficient evidence to sustain her conviction under § 940.10. The legislature defines “criminal negligence” as “ordinary negligence to a high degree, consisting of conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another.” Section 939.25(1).

Judicial interpretations of “high degree of negligence” under former § 940.08 remain relevant to “criminal negligence” under current statutes, ¶20. Culpability does not require a state of mind different from that required for ordinary negligence but, rather, existence of high probability of death or great bodily harm as discerned by reasonable person, ¶21.

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