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Victim’s failure to wear seatbelt doesn’t diminish OWI defendant’s culpability

State v. Pierre Deshawn Johnson, 2018AP595-CR, 2/12/19, District 1 (not recommended for publication); case activity (including briefs)

Johnson pled to operating a vehicle with a suspended license and injury by operating under the influence of a controlled substance. His lead issue–whether the victim’s failure to wear a seatbelt was a significant intervening factor that diminished his culpability and warranted a new sentence–failed based on State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163.

Turk involved a drunk driver who hit a utility pole and thereby injured his 3 passengers. Turk sought to prove that his passengers weren’t wearing seatbelts so they would have been injured whether he was drunk or not. Turk held that a passenger’s failure to wear a seatbelt is not a new and independent force breaking the causal connection between the original act and the injury. Turk, 154 Wis. 2d at 296.

Repeating Turk’s holding, the court of appeals denied Johnson’s motion for sentence modification. The failure to wear seatbelts is not a new and independent force breaking the causal connection between Johnson’s driving and the victim’s injury. Opinion, ¶10.

Johnson’s argument that the State breached its plea agreement (that it would request 5 years IC and 5 years ES) when it argued against his motion for postconviction sentence modification also failed. The court of appeals deemed it “novel” but “meritless” because a plea agreement does not extend beyond the original sentencing hearing. Opinion, ¶12)(citing State v. Windom, 169 Wis. 2d 341, 350, 485 N.W.2d 832 (Ct. App. 1992).

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