Homicide by Intoxicated Use of a Vehicle in Wisconsin: § 940.09

In Wisconsin, homicide by intoxicated use of a vehicle is a Class D felony under Section 940.09, punishable by up to 25 years in prison and a $100,000 fine, with a mandatory minimum of five years’ initial confinement. The charge jumps to a Class C felony with a 40-year maximum if the driver has any qualifying prior OWI-related offense. Every conviction also triggers a five-year license revocation (ten years if a child under 16 was in the vehicle), and the victim’s family can file a separate wrongful death lawsuit no matter what happens in the criminal case.

What the State Has to Prove

Two elements, both beyond a reasonable doubt: that you were operating a vehicle while impaired, and that your operation caused someone’s death. The statute protects any person, including an unborn child at any stage of development.¹

Impairment can be shown three ways. The most familiar is a blood alcohol concentration of 0.08 or higher (0.04 for commercial drivers).² The second is any detectable amount of a restricted controlled substance in the driver’s blood. The third is proof the driver’s ability to operate the vehicle safely was impaired by alcohol or drugs, which the state can establish through officer testimony, field sobriety performance, and other evidence even when the chemical test comes in below 0.08.¹

Causation is a lower bar than most defendants expect. Prosecutors do not have to prove bad driving. No swerving, no red light, no speeding is required. The state only has to show the death would not have happened but for the defendant operating the vehicle while impaired.

The One Affirmative Defense

The statute gives the defendant a single way out: proving by a preponderance of the evidence that the death would have occurred anyway, even if the defendant had been sober and exercising due care.¹ A classic example is another driver crossing the center line head-on with no reaction time available to anyone. The burden sits on the defense, courts read the defense narrowly, and it rarely succeeds.

First-Offense Penalties

Without any qualifying prior, the charge is a Class D felony. The maximum is 25 years in prison, a fine of up to $100,000, or both.³ The sentence is bifurcated, meaning the total term is split between initial confinement in prison and a period of extended supervision afterward.

The confinement portion carries a five-year statutory minimum. A judge can go below five years only by finding a compelling reason and putting it on the record, which almost never happens in a vehicular homicide case.¹ Extended supervision is added on top of that confinement time, not counted against it.

On top of any fine, the court can order restitution to the victim’s family for funeral expenses and other documented financial losses. Restitution has no statutory cap.

When the Charge Becomes a Class C Felony

One qualifying prior is enough to escalate the offense to a Class C felony, raising the maximum to 40 years in prison and keeping the $100,000 fine ceiling. The five-year confinement minimum still applies.¹

What counts as a prior is broad. Wisconsin includes prior OWI convictions, prior 940.09 convictions, injury-by-intoxicated-use convictions, refusal-related revocations, and equivalent convictions from other states or from federally recognized tribal courts.⁴ An old DUI from another state years ago can be the difference between the 25-year and the 40-year maximum.

Multiple Deaths and Child Passengers

Each death from a single crash is a separate chargeable offense. A driver who kills two people in one crash can face two counts, each with its own maximum. Judges have discretion to run those sentences concurrently or consecutively, and in multi-fatality cases consecutive sentences are common.⁵

A different rule applies when the state charges multiple theories of impairment for the same death. Charges based on operating under the influence and operating with a prohibited blood alcohol concentration from the same incident must be joined, and convictions on more than one theory count as a single conviction for sentencing.¹ That protects against double punishment for one act of impaired driving. It does nothing for the driver who killed more than one person.

If a passenger under 16 was in the vehicle, the administrative license revocation doubles from five years to ten.⁶

License Revocation and Occupational License

Every 940.09 conviction triggers a mandatory five-year revocation of driving privileges. The period doubles to ten years if a minor passenger under 16 or an unborn child was in the vehicle at the time.⁶ The Department of Transportation handles revocation administratively, and it runs independently of any prison sentence.

Wisconsin allows a revoked driver to apply for an occupational license covering limited driving to and from work, school, treatment, or other approved purposes. For a first-offense 940.09 conviction, eligibility begins 120 days into the revocation. With two or more countable OWI-related offenses in a five-year window, the wait extends to one year.⁷ Getting the occupational license also requires completing an alcohol and drug assessment and following through on a driver safety plan; failing the plan cancels the occupational license.⁸

Ignition Interlock

Ignition interlock is not automatic for every 940.09 conviction. The court must order the device if the driver’s blood alcohol concentration was 0.15 or higher at the time of the offense, or if the driver has one or more prior OWI-related convictions in their lifetime.⁹ Most vehicular homicide defendants fit one of those categories, so the device is a near-universal consequence in practice. A true first-time offender with a BAC under 0.15 and no restricted controlled substance in their blood would not be subject to the order.

When the interlock is required, the court sets the duration at no less than one year and no more than the maximum revocation period, which is five years for a standard conviction and ten years with a minor passenger. The driver pays for installation, monthly calibration, and lease fees, typically several hundred dollars a year.

Commercial Driver’s License Consequences

Any CDL holder convicted of causing a fatality through the operation of a motor vehicle faces a one-year disqualification from operating a commercial vehicle for a first offense. A second qualifying conviction in a separate incident is a lifetime CDL disqualification.¹⁰ This federal disqualification applies even if the fatal crash involved a personal vehicle rather than a commercial one. For drivers whose work depends on the CDL, the career impact is often permanent.

Civil Wrongful Death Liability

A criminal conviction does not close the financial door. The victim’s family can file a separate civil action under Wisconsin’s wrongful death statute. The personal representative, or certain family members, can recover pecuniary damages for the financial losses caused by the death plus loss of society and companionship damages, which are capped at $350,000 for a deceased adult and $500,000 for a deceased minor.¹¹ Medical bills incurred before the death and reasonable funeral costs are recoverable on top of those caps.

Punitive damages are generally not available in a Wisconsin wrongful death action itself. But if the crash also injured surviving victims, those survivors can pursue punitive damage claims in their own right. Wisconsin normally caps punitive damages at twice the compensatory damages or $200,000, whichever is greater. That cap does not apply when the defendant was operating a vehicle while intoxicated to a degree that rendered them incapable of safe operation.¹² A drunk driver who kills one person and injures another can face potentially unlimited punitive damages from the surviving victim’s claim.

Crime Victim Compensation for Families

Families of victims killed by intoxicated drivers may qualify for the Wisconsin Crime Victim Compensation Program, run by the Department of Justice. The program pays up to $40,000 in out-of-pocket expenses not covered by insurance or other sources, including funeral costs up to $5,000, loss of support payments to dependents, and mental health counseling for surviving family members.¹³

Eligibility requires that the crime be reported to law enforcement within five days (with some flexibility for good cause), that the applicant file a claim within one year, and that the victim’s own conduct did not cause or contribute to the death. The program is a payer of last resort, so families use available insurance or other benefits first. Receiving compensation does not affect the family’s right to pursue a wrongful death lawsuit or to receive court-ordered restitution.

One Note on Scope

Section 940.09 is not limited to vehicles. A separate subsection applies the same Class D felony charge to anyone who causes a death by handling a firearm or airgun while impaired, using the same three impairment definitions. The firearm subsection does not include the Class C felony enhancement for prior convictions.¹ The vehicle penalties above do not transfer across; a firearm case runs on its own track.

1
Wisconsin State Legislature. Wisconsin Statutes 940.09 – Homicide by Intoxicated Use of Vehicle or Firearm
2
Wisconsin State Law Library. Wisconsin Jury Instruction – Criminal 2660 – Operating a Motor Vehicle with a Prohibited Alcohol Concentration
3
Wisconsin State Legislature. Wisconsin Code 939.50(3)(d) – Classification of Felonies
4
Wisconsin State Legislature. Wisconsin Statutes 343.307 – Prior Convictions, Suspensions, and Revocations
5
Wisconsin State Legislature. Wisconsin Code 940.09 – Homicide by Intoxicated Use of Vehicle or Firearm, Annotations
6
Wisconsin State Legislature. Wisconsin Statutes 343.31 – Revocation or Suspension of Licenses After Certain Convictions
7
Wisconsin State Legislature. Wisconsin Code 343.31(3m)(a) – Occupational License Eligibility After Revocation
8
Wisconsin Department of Transportation. OWI Assessment and Driver Safety Plan
9
Wisconsin State Legislature. Wisconsin Code 343.301(1g) – Ignition Interlock Device Requirements
10
eCFR. 49 CFR Part 383 Subpart D – Driver Disqualifications and Penalties
11
Wisconsin State Legislature. Wisconsin Code 895.04 – Wrongful Death
12
Wisconsin State Legislature. Wisconsin Code 895.043 – Punitive Damages
13
Wisconsin Department of Justice. Crime Victim Compensation Program