THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Driving Under The Influence (DUI): Homicide & Manslaughter

    1.    Homicide By Operation of Vehicle With A Prohibited Alcohol Concentration -- 
           Affirmative Defense
    2.    Law Does Not Impose Upon Anyone An Absolute Duty To Avoid An Accident
    3.    DUI Homicide: Uncharged Criminal Negligence As Lesser Offense
    4.    Intervening Cause Between Defendant's Driving Under The Influence And Victim’s Death

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Homicide By Operation of Vehicle With A Prohibited Alcohol Concentration -- Affirmative Defense

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Would the death of __________ (name of victim) have occurred either if the defendant had not been operating a vehicle with a prohibited alcohol concentration at the time of the accident?

    _________ (state e.g., Wisconsin) law provides that it is a defense to this crime if you are satisfied to a reasonable certainty by the greater weight of the credible evidence that the death would have occurred even if the defendant had not had a prohibited alcohol concentration.

    By the greater weight of the evidence is meant evidence which, when weighed against that opposed to it, has more convincing power. Credible evidence is evidence which in the light of reasoning, common sense is worthy of belief.

    If you are satisfied to a reasonable certainty by the greater weight of the credible evidence that the death of __________ (name of victim) would have occurred even if the defendant had not had a prohibited alcohol concentration you must answer the question on the verdict form "Yes."

    However, if you are not satisfied to a reasonable certainty by the greater weight of the credible evidence that the death would have occurred even if the defendant had not had a prohibited alcohol concentration, and if you are satisfied beyond a reasonable doubt that the defendant caused the death of __________ (name of victim) while (he/she) had a prohibited alcohol concentration, you should answer that question "No."

State v. Pietroske, Case No. 96-CF-126 (Manitowoc County Circuit Court, 1997) [Modified Pattern Instruction].

See also THE SHELLOW COLLECTION: DUI: Generally.

See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.

See generally NCJIC: Chapter 89: Drunk Driving.

See also NCJIC: 92.5 [Vehicular Manslaughter].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    Law Does Not Impose Upon Anyone An Absolute Duty To Avoid An Accident

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    You have heard evidence concerning an accident involving the defendant. In considering whether 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 or did not have a prohibited alcohol concentration, you must keep in mind that the law does not impose upon anyone an absolute duty to avoid an accident and the law does not contemplate that all accidents or mishaps must arise as a consequence of fault. In _______ (state) it is the rule of law that no one has imposed upon him or her the absolute duty not to injure or endanger any person.

    You have heard evidence concerning an accident involving the defendant. In considering the evidence, you must keep in mind that the law does not impose upon anyone an absolute duty to avoid an accident and the law does not contemplate that all accidents or mishaps must arise as a consequence of fault. In ________ (state) it is the rule of law that no one has imposed upon him the absolute duty not to injure or endanger any person.

Millonig v. Bakken, 112 Wis. 2d 445, 452, 334 N.W.2d 80 (1983).

    You have heard evidence concerning an accident involving the defendant. In considering whether 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 or did not have a prohibited alcohol concentration, you must keep in mind that the law does not impose upon anyone an absolute duty to avoid an accident and the law does not contemplate that all accidents or mishaps must arise as a consequence of fault. In _____ (state) it is the rule of law that no one has imposed upon him the absolute duty not to injure or endanger any person.

See also THE SHELLOW COLLECTION: DUI: Generally.

See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.

See generally NCJIC: Chapter 89: Drunk Driving.

See also NCJIC: 92.5 [Vehicular Manslaughter].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    DUI Homicide: Uncharged Criminal Negligence As Lesser Offense

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    __________ (name of defendant) is charged with causing the death of another by the operation or handling of a vehicle while (he/she) was under the influence of an intoxicant and with causing the death of another by the operation or handling of a vehicle while (he/she) had a prohibited alcohol concentration. (He/She) is not charged with the offense of causing the death of another by the negligent operation or handling of a vehicle. That separate offense has the following elements:

    First, that the defendant operated a vehicle.

    Second, that the defendant operated a vehicle in a manner constituting criminal negligence.

    Third, that such criminal negligence on the part of the defendant caused the death of __________ (name of victim) .

    The first element of this offense requires that the defendant operated a vehicle.

    The second element of this offense requires that the defendant operated a vehicle in a manner constituting criminal negligence.

    To understand what constitutes criminal negligence, you should first consider what is meant by ordinary negligence.

    A person is negligent when he fails to exercise ordinary care. Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails to exercise ordinary care when, without intending to do any harm, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject the person of another to an unreasonable risk of harm.

    [The Criminal Code provides that, "Criminal negligence means ordinary negligence to a high degree, consisting of conduct which the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another."]

    Criminal negligence differs from ordinary negligence in two respects. First, there must be a risk not only of some harm but of serious harm -- that is, of death or great bodily harm. Second, the risk of such harm must not only be unreasonable, it also must be substantial. Therefor, for conduct to constitute criminal negligence, the defendant should have realized that the conduct created a substantial unreasonable risk of death or great bodily harm to another.

    The third element of this offense requires that the defendant's operation of a vehicle in a manner amounting to criminal negligence caused the death of __________ (name of victim). This requires that the relation of cause and effect must have existed between the death of __________ (name of victim) and criminal negligence on the part of the defendant. Before the relation of cause and effect can be found to exist, it must appear that criminal negligence by the defendant was a substantial factor in producing the death.

    If you believe that __________ (name of defendant) is guilty of the uncharged offense of criminal negligence, but not guilty of the charged offenses, you must acquit him of the charged offenses.

See also THE SHELLOW COLLECTION: DUI: Generally.

See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.

See NCJIC Chapter 52: Criminal Negligence.

See generally NCJIC: Chapter 89: Drunk Driving.

See also NCJIC: 92.5 [Vehicular Manslaughter].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Intervening Cause Between Defendant's Driving Under The Influence And Victim’s Death

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    It is the defendant's theory of defense in this case that the death of __________ (name of victim) would have occurred even if __________ (name of defendant) had not [been under the influence of an intoxicant] [had a blood-alcohol concentration of .10% or more]. It is his theory that __________’s (name of victim) _______________ (intervening actions e.g., jerking the steering wheel to the right in order to avoid another car) was an intervening cause between the defendant's driving under the influence or with a blood-alcohol concentration of ________ (DUI percentage e.g., .10%) or more and __________ (name of victim) death.

State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985).

State v. Fiedler, No. 85-CR-48 (Rock County Circuit Court).

See also THE SHELLOW COLLECTION: DUI: Generally.

See also THE SHELLOW COLLECTION: DUI: Blood Alcohol Level.

See NCJIC Chapter 52: Criminal Negligence.

See generally NCJIC: Chapter 89: Drunk Driving.

See also NCJIC: 92.5 [Vehicular Manslaughter].