This is an interlocutory appeal. Raczka is charged with homicide by intoxicated use of a vehicle and reckless homicide; he crashed his car into a tree on the way to work in the morning and his passenger was killed. A blood test revealed trace amounts of THC and cocaine so naturally, the state charged him with two homicides.
Also naturally, the state moved pretrial to keep him from putting on his defense: that the reason his car left the road was not because of any drug use but because he had a seizure while driving. (He has ample evidence that this was in fact the case. (¶4).) This is an affirmative defense to homicide by intoxicated use and, as the court of appeals notes, would also tend to negate the mens rea for reckless homicide.
Specifically, the affirmative defense requires that the defendant show the death would have occurred even if (1) he had not had the detectable amount of drugs in his blood and (2) he had not been negligent (i.e. had exercised “due care”). Wis. Stat. § 940.09(2)(a). This latter requirement is, as the court explains, a codification of the holding of State v. Caibaiosai, 122 Wis. 2d 587, 596, 363 N.W.2d 574 (1985). (¶¶9-12).
As the court explains,
Under the plain text of WIS. STAT. § 940.09(2)(a), a seizure can, as a general matter, be a defense to the charge of homicide by intoxicated use of a vehicle. By way of example, consider a defendant who has no prior history of seizures, no prescribed medication, or any other indication that he or she might have a seizure that would lead to an accident. And assume the defendant has a seizure while driving that causes an accident where another is killed. Even if that defendant had a detectable amount of a restricted controlled substance in his or her bloodstream, para. (2)(a) would allow evidence of the seizure to be used as a defense. A nonnegligent event—the seizure—would have caused the accident irrespective of the presence of a restricted controlled substance. See id. To track the statute’s language, “the death would have occurred even if [the defendant] had been exercising due care.” Id. So long as evidence is not inadmissible for some other reason, the statute plainly allows defendants to present this kind of relevant evidence and make their case. Evidence of a seizure clearly fits the bill.
As the court then notes, though, this isn’t exactly the case here–Raczka had at least some history of seizures, had been prescribed anti-seizure medication a few years before the crash, and had not taken it when the crash occurred. In the state’s view, this means that even if a seizure caused the accident, it’s no defense because Raczka’s not taking his medicine was negligent as a matter of law. The court disagrees:
[W]hether Raczka’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. Many factors could impact Raczka’s duty of care and the foreseeability of harm. Any patient who, like Raczka, is prescribed antiseizure medication would likely consider any verbal instructions from his doctor, the side effects of the medication, the benefits and relative effectiveness of the medication generally, the benefits and relative effectiveness for Raczka in the past, Raczka’s propensity for seizures, the inability to procure the medication because of cost, and other such concerns. After hearing the relevant evidence and judging the credibility of the witnesses, a jury might conclude that Raczka had been exercising due care under the circumstances and that he did have a seizure leading to the accident. On the other hand, the jury could conclude that Raczka did not meet his burden to prove that he had a seizure, or that even if he did, he was exercising due care when he failed to take his medication. At the very least, we cannot see how failure to take prescribed medication prior to driving at all times and in all places constitutes negligence as a matter of law.
The core statutory question in Raczka’s defense to the charge of homicide by intoxicated use of a vehicle is whether the accident would have occurred anyway if Raczka had been exercising due care and had not been under the influence of intoxicants. Raczka has put forward evidence attempting to show just that. This evidence is not just speculative; it is relevant to the affirmative defense. The jury is entitled to hear and weigh this evidence.