Wisconsin's most serious OWI-adjacent offense
Wisconsin Statute § 940.09 criminalizes causing the death of another person while operating a vehicle (or, under (1g), a firearm or airgun) in any of the impaired conditions defined elsewhere in OWI law. The statute is structured into multiple subsections covering the four impairment theories (intoxicated, restricted controlled substance, PAC, commercial vehicle BAC), and parallel "(c)-(e)" subsections for cases involving an unborn child.
Penalty structure
| Offense variant | Felony class | Max imprisonment | Max fine | Mandatory minimum |
|---|---|---|---|---|
| § 940.09(1c)(a) - base offense | Class D | 25 years | $100,000 | 5 years initial confinement (court may reduce only with compelling reason on record) |
| § 940.09(1c)(b) - with prior under § 343.307(2) | Class C | 40 years | $100,000 | 5 years initial confinement |
| § 940.09(1g) - firearm/airgun variant | Class D | 25 years | $100,000 | None specified |
License consequences
- 5-year revocation under § 343.31(3)(c) for the base offense
- 10-year revocation if a passenger under 16 (or unborn child) was in the vehicle
- Permanent revocation under § 343.31(1m)(b) when § 940.09 convictions plus § 940.25 convictions plus other counted priors total 4 or more. Reinstatement no sooner than 10 years later under § 343.38.
- IID required for 1 to 3 years after reinstatement under § 343.301
The § 940.09(2) affirmative defense
Wisconsin Statute § 940.09(2)(a) provides:
"The defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant."
This affirmative defense is unique to § 940.09 (and the parallel § 940.25 injury statute). It shifts the burden to the defense to prove by a preponderance - not beyond a reasonable doubt - that the intoxication did not causally contribute to the death.
In practice, this defense lives or dies on accident-reconstruction expert testimony. The defense must show that the death would have occurred even if the defendant had been sober and using due care. Cases where the defense has succeeded typically involve sudden, unavoidable events: a pedestrian darting into traffic, an intoxicated other driver running a light, a mechanical failure, or a road condition that no reasonable driver could have avoided.
Defense workflow
- Day 1: Independent scene investigation. Wisconsin § 940.09 cases require accident-reconstruction work that begins at the scene if possible, before evidence is moved or destroyed.
- Within 10 days (if applicable): File the refusal-hearing request under § 343.305(9) before the deadline runs.
- Pretrial: Suppression motions on the stop, arrest, and chemical test. Independent toxicology review of the blood draw and lab analysis. Causation analysis using accident-reconstruction experts.
- Affirmative-defense development: Build the § 940.09(2)(a) "would have happened anyway" defense from independent reconstruction, biomechanics, and witness analysis. The defense bears the preponderance burden, so the development must be thorough.
- Plea negotiation (where appropriate): Negotiate toward reduced charges (e.g., § 940.25 injury OWI when the death-causation element is genuinely contested) or toward a sentence below the 5-year mandatory minimum where compelling-reason mitigation supports it.
- Trial preparation: Jury trial is a constitutional right. § 940.09 cases that proceed to trial typically center on causation experts and the affirmative-defense framework.
How common is a Wisconsin § 940.09 charge?
- 54 Negligent Homicide Intoxicated convictions in Wisconsin in 2024 (WI DOT, "Traffic Convictions Entered on Driver Record"). 29 in 2023; 27 in 2022; 27 in 2021. The 2024 figure is roughly double the prior-year baseline.
- 138 statewide impaired-driving FATAL crashes in 2024 (WI DOT 2024 Wisconsin Traffic Crash Facts), causing 163 deaths.
- 159 alcohol-related traffic fatalities in Wisconsin in 2023 (28.2% of 563 total fatalities), per WI Legislative Fiscal Bureau Informational Paper #62 (January 2025).
- Per-county 2024 impaired-driving fatalities: Racine County 5 killed in 5 fatal crashes; Kenosha County 4 killed in 4 fatal crashes; Walworth County 2 killed in 2 fatal crashes.
Sources: WI DOT 2024 Wisconsin Traffic Crash Facts · WI DOT Traffic Convictions 10-year summary · WI LFB Informational Paper #62, January 2025
§ 940.09 cases require immediate, sophisticated defense work. The mandatory 5-year initial-confinement minimum, the 5- to 10-year license revocation (or permanent revocation when combined with priors), and the lifetime federal firearm prohibition all attach automatically on conviction. Independent accident reconstruction, the § 940.09(2)(a) affirmative defense, and rigorous chemical-test challenges are the defense work that matters. Call (262) 632-5000 24/7. We serve Racine, Kenosha, and Walworth counties.
