The elements of § 940.25
The state must prove three elements beyond a reasonable doubt:
- The defendant operated a motor vehicle
-
While in one of the impaired conditions specified in § 940.25(1):
- (a) under the influence of an intoxicant
- (am) with a detectable amount of restricted controlled substance in the blood
- (b) with a prohibited alcohol concentration
- (bm) operating a commercial motor vehicle with BAC 0.04 to less than 0.08
- The operation caused great bodily harm to another person (or an unborn child under subs. (c)-(e))
All four impairment theories result in a Class F felony charge. The distinction matters for defense strategy: the (b) per-se PAC theory is defended like a chemical-test case; the (a) impairment theory is defended like an OWI case.
Penalty structure
| Element | Detail |
|---|---|
| Felony class | Class F felony (§ 939.50(3)(f)) |
| Maximum imprisonment | 12 years 6 months (bifurcated sentence under § 973.01) |
| Maximum fine | $25,000 |
| License revocation (no minor) | 2 years under § 343.31(3)(f) |
| License revocation (minor passenger or unborn child) | 4 years (doubled) |
| Ignition interlock | 1 to 3 years after reinstatement under § 343.301 |
| Counted as prior for future OWI? | Yes under § 343.307(1)(c) |
| Triggers permanent revocation when combined? | Yes when total of § 940.09 + § 940.25 + § 343.307(1) priors reaches 4+ |
| Federal firearm prohibition | Lifetime, under 18 U.S.C. § 922(g)(1) |
The "would have happened anyway" affirmative defense
Wisconsin Statute § 940.25(2)(a) provides:
"The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm 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 § 940.25 (and its sister homicide statute § 940.09). 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 injury.
In practice, this defense lives or dies on accident-reconstruction expert testimony. The defense must show:
- The other driver, pedestrian, or environmental factor was the proximate cause
- A sober, careful driver would have suffered the same outcome under the same circumstances
- Reaction-time and avoidance-physics analysis supports the conclusion
Cases where the defense has succeeded typically involve sudden, unavoidable obstacles (a pedestrian darting out, an intoxicated other driver running a red light, a mechanical failure of another vehicle) that no reasonable sober driver could have prevented.
Defense strategies for § 940.25
Causation challenge (often the entire case)
Even when intoxication is conceded, the prosecution must prove the intoxication CAUSED the injury. Multi-vehicle accidents, complex traffic geometries, and contributing fault by other parties all open causation challenges. Independent accident reconstruction is typically the highest-value defense investment in a § 940.25 case.
Suppression of the chemical test
The same chemical-test challenges available in any PAC case apply with higher stakes here: 20-minute observation period, calibration logs, blood draw consent and qualification, lab analyst availability under Bullcoming v. New Mexico. A successful chemical-test suppression eliminates the per-se theory and forces the state onto the harder impairment theory.
Suppression of the stop and arrest
The Fourth Amendment doesn't bend because injury is involved. A defective stop or unconstitutional arrest can suppress the entire evidentiary chain.
Affirmative-defense development
The § 940.25(2)(a) "would have happened anyway" defense is the unique feature of this statute. It requires expert development from day one of the case: accident reconstructionists, biomechanics specialists, and sometimes scene investigators. The defense bears the preponderance burden.
Plea negotiation toward a non-felony alternative
Where conviction is unavoidable, plea negotiations can sometimes reduce a § 940.25 felony to a § 346.63(2) injury OWI (Class A misdemeanor in some framings) or to a felony with concurrent rather than consecutive sentencing on the underlying OWI count. Each path has distinct collateral consequences that we work through with the client.
How common is an OWI causing injury charge?
- 279 OWI Causing Injury convictions in Wisconsin in 2024 (WI DOT, "Traffic Convictions Entered on Driver Record"). 239 in 2023; 252 in 2022; 220 in 2021.
- 2,537 statewide impaired-driving INJURY crashes in 2024 (WI DOT 2024 Wisconsin Traffic Crash Facts) out of 7,066 total impaired-driving crashes (138 fatal, 4,391 PDO).
- Per-county 2024 impaired-driving crashes (Fatal / Injury / PDO): Racine County 5 / 82 / 145 (129 people injured); Kenosha County 4 / 110 / 196 (163 people injured); Walworth County 2 / 48 / 92 (65 people injured).
- 27% of all 509 fatal crashes in Wisconsin in 2024 included an impaired driver (WI DOT 2024 Crash Facts).
Sources: WI DOT 2024 Wisconsin Traffic Crash Facts · WI DOT Traffic Convictions 10-year summary
OWI causing injury cases are won at the reconstruction stage. Independent investigation, expert reconstruction, and affirmative-defense development under § 940.25(2)(a) are the highest-leverage moves. We retain qualified reconstruction experts on every § 940.25 case where the facts support the defense. Call (262) 632-5000 24/7. We serve Racine, Kenosha, and Walworth counties.
