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§ 940.25(1)(am), Injury by Intoxicated Use of Motor Vehicle – Constitutionality

State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate

Issue/Holding1: The elements of § 940.25(1)(am) – the defendant operated a vehicle with “a detectable amount of a restricted controlled substance in his or her blood, and the operation of the vehicle caused great bodily harm to the victim – do not create any presumption so as to relieve the State of its burden of proof, ¶¶11-12:

Rather, the statute simply defines the elements of the offense. See State v. Ulrich, 478 N.E.2d 812, 820 (Ohio Ct. App. 1984) (“The present statute does not presume; rather, it defines what specific conduct is prohibited.”). Thus, if the State proves both elements beyond a reasonable doubt, a defendant is not presumed guilty—he or she is guilty of those elements.

Issue/Holding2: § 940.25(1)(am) does not violate the 8th amendment:

¶13      Gardner also contends that the statutes here create an impermissible “status offense.” See Robinson v. California, 370 U.S. 660, 682 (1962); State v. Bruesewitz, 57 Wis. 2d 475, 479-80, 204 N.W.2d 514 (1973) (Eighth Amendment prohibits “making it a crime to be ‘addicted’ to narcotics …. Criminal liability [cannot] be based on the mere status of addiction.”). We reject Gardner ’s contention.¶14      The statutes involved here penalize conduct, not status. The statutes prohibit operation of a vehicle with a detectable amount of a restricted controlled substance in one’s blood and the causing of great bodily harm as a result of that operation of a vehicle. Thus, a defendant is not being penalized simply for being a drug addict. A defendant cannot be prosecuted under Wis. Stat. § 940.25(1)(am) unless he or she actually engages in conduct—operation of a vehicle such that great bodily harm is caused to another human being. The United States Supreme Court made it clear that Robinson does not apply in the context presented in the instant case. See Powell v. Texas, 392 U.S. 514, 532-36 (1968) ( Robinson does not prevent states from punishing defendants who engage in behavior which the state has an interest in preventing; it does not prohibit penalizing conduct).

Issue/Holding3: Absence of causation from required proof doesn’t invalidate § 940.25(1)(am):

¶16      Gardner is correct that the legislature did not include, within the commission of this crime, the requirement that the State prove that the defendant’s ingestion of a controlled substance caused the injury. Rather, the legislature criminalized a specific act—driving with any amount of a restricted controlled substance in one’s blood, where the driving causes great bodily injury to another human being. Thus, the only causal connection required is that the operation of the vehicle caused the injury. …¶17      Thus, that leaves us with the question of whether the legislature’s enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way violates its authority. We cannot reach such a conclusion. First, Gardner fails to provide any authority to suggest that the legislature violated its authority in writing Wis. Stat. § 940.25(1)(am) & (2)(a). Second, this court recently held constitutional Wis. Stat. § 346.63(1)(am) (“No person may drive or operate a motor vehicle while: … The person has a detectable amount of a restricted controlled substance in his or her blood.”). See State v. Smet, 2005 WI App 263, ¶1, ___ Wis. 2d. ___, 709 N.W.2d 474. …

¶18      Third, our supreme court addressed a similar issue in State v. Caibaiosai, 122 Wis. 2d 587, 594, 363 N.W.2d 574 (1985). In that case, the court discussed the causation element of the offense proscribed in Wis. Stat. § 940.09(1)(a), homicide by intoxicated use of a vehicle, which requires only a causal connection between the operation of a vehicle and the resulting injury. The homicide statute does not “include as an element of the crime a direct causal connection between the fact of defendant’s intoxication … and the victim’s death….  [P]roof of [the offense] need not require causal connection between the defendant’s intoxication and the death.” Caibaiosai, 122 Wis. 2d at 594.


¶22      Finally, we address Gardner ’s contention that Wis. Stat. § 940.25(2)(a), creating a defense to the crime, improperly transfers the burden of proof from the State to the defendant. We reject his contention.¶23      The legislature, in enacting this statute, provided a defendant with a true affirmative defense in Wis. Stat. § 940.25(2)(a), which permits a defendant to show that the presence of the illegal drug was not the cause of the accident—that the injury would have occurred even if he or she had not used illegal drugs and driven. The affirmative defense provided for in the statute constitutes an absolute defense to the criminal act. “Due process does not prohibit the state from placing the burden of proving an affirmative defense on the defendant.” State v. McGee, 2005 WI App 97, ¶16, 281 Wis. 2d 756, 698 N.W.2d 850.


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