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Fleeing, § 346.04(3) – Elements

State v. Thomas P. Sterzinger, 2002 WI App 171
For Sterzinger: Steven P. Weiss, SPD, Madison Appellate

Issue1Whether fleeing, § 346.04(3) requires proof that the defendant knowingly “interfere(d) with or endanger(ed)” another.

Holding1Scienter is required, but is limited to a single element — knowingly flee or attempt to elude — and doesn’t extend to “interfere with or endanger.” ¶¶7-11.

Issue2Whether fleeing, § 346.04(3), requires actual interference with or endangerment of another vehicle or pedestrian.

Holding2Though the statute is ambiguous, its purpose — penalizing risk-creating behavior such as increasing speed or extinguishing lights — doesn’t require that another person or vehicle be interfered with or endangered. ¶¶13-19.

The fleeing statute expressly requires “that he knowingly fled or attempted to elude … so as to interfere with or endanger[.]” The court properly zeros in on “so as to,” consults a dictionary, and determines that the phrase means “with the result or purpose.” “Result,” the court says, implies actual interference or endangerment but “purpose” merely implies an intended outcome. ¶12. The court goes with the latter, but overlooks thatSterzinger has in effect argued both definitions; the court is simply oblivious to the idea that even as “purpose” defeats “actual” interference / endangerment, it supports his other argument as to scienter. Sterzinger might lose on actual interference but should win on scienter.

Separately: for whatever it’s worth, for federal purposes, fleeing is considered a “crime of violence,” U.S. v. Rosa, 7th Cir No. 04-2929, 3/24/05.


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