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Homicide of Unborn Child by Intoxicated Use of Motor Vehicle, §§ 939.75(2)(b)3, 940.09(1)(c): No Violation Equal Protection; Sentencing: Accurate Information – Can’t Show Impact

State v. Mark M. Benson, 2012 WI App 101 (recommended for publication); case activity

Equal Protection – Homicide of Unborn Child by Intoxicated Use of Motor Vehicle, §§ 939.75(2)(b)3, 940.09(1)(c) 

Section § 939.75(2)(b)3 exempts from criminal liability any “act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.” Benson was convicted under § 940.09(1)(c) for causing the death of an unborn child by intoxicated use of a motor vehicle. He argues that the differential availability of the § 939.75(2)(b)3 exemption violates his right to equal protection; the court rejects the argument:

¶11      As pertinent to this case, the two groups the statute creates are: (1) intoxicated drivers who cause the death of or harm to an unborn child living within them and (2) intoxicated drivers who cause the death of or harm to an unborn child living within another person.  These two groups are meaningfully different.

¶14      A pregnant woman who engages in conduct which causes the death of or harm to the unborn child within her, necessarily jeopardizes her own life or health by engaging in such conduct.  If the pregnant woman drinks excessively, overdoses on drugs, or stabs herself in the abdomen, to use Benson’s examples, causing risk of death or harm to the unborn child, she necessarily risks death or harm to herself as well. No one else, including Benson, inherently risks death or harm to himself or herself by engaging in conduct which causes the death of or harm to an unborn child living within another individual.  Further, of the two “groups” who might cause the death of or harm to an unborn child by intoxicated use of a motor vehicle, only the pregnant woman has the ability to subsequently procure medical care for the unborn child or terminate her pregnancy.

¶15      Because neither Benson nor anyone else is similarly situated to a pregnant woman who engages in conduct which causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation.

In other words, equal protection analysis isn’t triggered, because Benson can’t show that he was treated less beneficially than someone else in a “similarly situated” category, ¶12 (“The Equal Protection Clause is not implicated, much less violated, unless the groups which are treated differently are similarly situated in the first instance.”). Benson argued the following:

The Wisconsin law essentially creates two groups of similarly situated persons, i.e., those intoxicated drivers who kill an unborn child. The first group includes those women pregnant with their own unborn child and the second group includes everyone else, including Benson. The first group gets complete immunity from prosecution, while the second faces prosecution and conviction with a potentially lengthy prison term. …

The court’s analysis rejecting the argument is a bit terse (one paragraph, 14), which isn’t problematic if the matter is as self-evident as the court seems to think. Maybe it is; draw your own conclusion. It is self-evidently true that if a woman’s reckless behavior endangers her unborn child it “necessarily risks death or harm to herself as well.” But it is not at all self-evident as to why she’s therefore entitled to a pass for resultant harm. The court omits the connecting thread. Feel free to supply it yourself, in the Comment box below.

The court is equally silent as to the legislative policy behind the § 939.75(2)(b)3 exemption. It passed as part of 1997 WISCONSIN ACT 295, which itself originated as 1997 ASSEMBLY BILL 221. The history to AB 221 is here. The drafting file, though, isn’t available online, so drawing refined conclusions about drafting intent will require antediluvian research skills. It’s pretty obvious that the statute relates to abortion, but precisely why the exempting language was drawn so broadly isn’t as obvious.

Sentencing – Accurate Information 

Benson argues that, through a misstep by counsel, his sentence was based on inaccurate information. (That is, the due process right to be sentenced only on accurate information is filtered through an IAC claim.) More specifically, he argues that his own expert’s report contained misinformation, about the actual level of the intoxicant (Ambien) in Benson’s system at the time of the fatal accident. The claim founders on the sentencing court’s denial that the inaccuracy made any difference to the outcome:

¶26      Based on this record, we cannot conclude that there is a reasonable probability the result of the sentencing hearing would have been different had Benson’s counsel clarified the Ambien-related information in Gengo’s report prior to sentencing.  While some of the court’s comments at sentencing suggest the court may have believed Gengo’s report indicated Benson’s blood sample, taken approximately one hour after the crash, had an excessive amount of Ambien in it, nothing about the court’s comments suggest Benson received a harsher sentence because of any perceived level of Ambien in his blood sample.  To the contrary, the court’s sentencing comments indicate that the court was not able to “quantify the degree of Mr. Benson’s impairment at the time of the collision” and that it did not believe Benson had taken “multiple dose[s] of opiate, medicine, [or] otherwise.”  The postconviction court was correct that it was part of the sentencing that the court was “dealing with someone who [was] intoxicated.”  We are not convinced there is a reasonable probability Benson received a harsher sentence because of the Ambien-related information in Gengo’s report.  He has not shown prejudice.

Benson didn’t object to the misinformation at sentencing – indeed, the defense itself presented it to the court in its own expert’s report – and therefore the issue was forfeited, and had to be raised through the prism of ineffective assistance, ¶17. The basic principle is well-settled: “A defendant has a due process right to be sentenced based on accurate information,” State v. Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. The defendant’s burden is to “establish that there was information before the sentencing court that was inaccurate, and that the [trial] court actually relied on the inaccurate information,” id.,¶¶2, 26, 31. If so, then the burden shifts to the State to show that the error was harmless, id., ¶3. But here, because the issue was forfeited, Benson has to satisfy the prejudice component of his ineffective assistance claim – as the blockquote above indicates, he can’t show a reasonable probability that any inaccuracy had an adverse impact on the sentence (the court doesn’t reach deficient performance), ¶18.

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{ 1 comment… add one }
  • Benbow Cheesman August 4, 2012, 10:45 am

    Re Benson: A pertinent analogy might be found in the fact that attempted suicide, while potentially triggering Ch. 51, is not a criminal act. In the same way, therefore, a woman’s conduct that threatens death or great bodily harm to herself by injuring her unborn child could not, logically, constitute a crime.

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