State v. Caibaiosai

• Decision Date: 30 April 1985
• Docket Number: No. 83-2330-CR,83-2330-CR
• Citation: 363 N.W.2d 574,122 Wis.2d 587
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Gary CAIBAIOSAI, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 574

363 N.W.2d 574

122 Wis.2d 587

STATE of Wisconsin, Plaintiff-Respondent, v. Gary CAIBAIOSAI, Defendant-Appellant.

No. 83-2330-CR.

Supreme Court of Wisconsin.

Argued Jan. 3, 1985.

Decided Feb. 27, 1985.

Reconsideration Denied April 30, 1985.

[122 Wis.2d 588] Steven P. Weiss, Asst. State Public Defender, for defendant-appellant.

Thomas J. Balistreri, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

STEINMETZ, Justice.

The issues in this case are: (1) whether sec. 940.09(1)(a), Stats., ¹ proscribing the crime of homicide by an intoxicated operation of a motor vehicle is unconstitutional in that it does not require a causal connection between the intoxicated condition of the operator and the death of another person; (2) whether the affirmative defense provision set out in sec. 940.09(2) invades his right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution; and (3) whether the trial court's refusal to instruct the jury on the affirmative defense set out in sec. 940.09(2) denied the defendant due process and a fair trial.

The defendant, Gary Caibaiosai, was charged with violating sec. 940.09(1)(a), Stats., by operating a motor vehicle while under the influence of an intoxicant which resulted in the death of Janet M. Tunkieicz. He was tried by a jury, found guilty and on February 24, 1983, was sentenced to serve a term of imprisonment not to exceed three years.

The defendant filed a post-conviction motion for a new trial on the grounds that: sec. 940.09(1)(a), Stats., is unconstitutional; sec. 940.09(2) invades his right against self-incrimination; and it was an abuse of discretion to refuse to give an instruction to the jury on the affirmative defense. Alternatively, that motion requested a reduction of his sentence. After a hearing, the trial court denied the motion and defendant filed a notice of appeal. The court of appeals certified the appeal to this court and we granted certification. 120 Wis.2d 690, 357 N.W.2d 563.

On June 6, 1982, at approximately 8:04 p.m., defendant was driving his 1977 Harley-Davidson motorcycle eastbound on Highway 142 in the vicinity of county Highway "MB" with Janet Tunkieicz as his passenger. Ahead of the defendant was Evidence was admitted that at approximately 10:09 p.m., a blood sample was taken from the defendant and later tested for alcohol content which registered at 0.13 percent. At 10:39 p.m. defendant was tested on a breathalyzer, and his blood alcohol level was listed as 0.11 percent.

David Dickinson operating a motorcycle with his passenger Yvonne Mink in the sidecar. At the trial, Mink testified the defendant and Tunkieicz pulled into the oncoming lane and passed them. She estimated that the defendant was driving somewhere between 60 and 65 miles per hour at the moment that he passed her. Dickinson and Mink also gave confusing and conflicting testimony concerning another motorcycle operated by Doug Hilliary, but it is not clear whether the defendant passed Hilliary or what Hilliary's exact position was at the time of the accident. After the defendant completed the pass and pulled back into the right lane, Mink observed his brake light flash and then his motorcycle go into the gravel along a curve in the road and skid into the three to four foot deep ditch along the side of the road. She did not identify the location of the gravel in reference to the pavement or the shoulder of the highway. Defendant's motorcycle traveled approximately 180 to 200 feet, struck a utility pole and flipped over causing Tunkieicz to strike a tree approximately 80 feet from the utility pole. Janet Tunkieicz was killed instantly. Upon impact the defendant was thrown clear, remained conscious and was not seriously injured.

The defense presented one witness, David Dickinson, the operator of the motorcycle on which Mink was a passenger. He testified he was a motorcycle mechanic and had a long history of owning and operating motorcycles. He testified he had lost control of motorcycles on numerous occasions and that a passenger riding on the back of a motorcycle could easily affect the controllability of the motorcycle. He also testified that road conditions could also cause a motorcyclist to lose control.

Dickinson stated he was operating his motorcycle at around the speed limit on Highway 142 when the defendant's motorcycle passed his. He described the accident by saying that it looked like the defendant's motorcycle had gone "towards the gravel" and a cloud of dust was raised. Dickinson testified he saw "a cloud of dust and it looked like the defendant recovered for a second and then the bike went down in the ditch." The defendant presented no other evidence and did not testify in his own behalf.

Section 940.09, Stats., was designed to protect the public from a particular type of risk and harm, namely to hold accountable persons who become intoxicated, operate a motor vehicle and cause the death of another person. In the preface to the latest revisions of the drunk driving laws, the legislature expressly stated that its purpose was to "provide maximum safety for all users of the highway of this state" from the harm threatened by "[o]peration of motor vehicles by persons who are under the influence of an intoxicant." Laws of 1981, ch. 20, secs. 2051(13)(a)1 and 2051(13)(b)1.

From the creation of sec. 940.09, Stats., to 1955 there were only two elements of the offense: causing the death of another person by the operation of a vehicle and being under the influence of an intoxicant at the time of the accident. State v. Peckham, 263 Wis. 239, 242, 56 N.W.2d 835 (1953). The Peckham court held that there was negligence in "the driving of an automobile while under the influence of intoxicating liquor." Id. at 243, 56 N.W.2d 835. This statement was based on an earlier declaration of this court in Tomasik v. Lanferman, 206 Wis. 94, 238 N.W. 857 (1931) as follows:

"One intoxicated is without proper control of all those faculties the exercise of which is necessary to avoid danger to others while driving a car upon a public highway. The driving of a car by one in such condition betrays an absence of any care, and indicates such recklessness and wantonness as evinces an utter disregard As this court stated in State v. Resler, 262 Wis. 285, 290, 55 N.W.2d 35 (1952):

of consequences." Id. at 97, 238 N.W. 857.

"[T]o require that facts be shown to prove that defendant's operation of the car was so affected by his intoxication that the accident would not have happened if he had been sober, would be to impose an impossible burden upon the state in the prosecution of such a case." Id. at 290, 55 N.W.2d 35.

Moreover, "If it can also be shown that the defendant was intoxicated when he so operated his vehicle, it must be assumed that there existed a causal connection between the intoxication and the death." Id. at 290, 55 N.W.2d 35, citing Tomasik.

In 1955 the legislature revised the statute to provide that a person was guilty of homicide by an intoxicated use of a vehicle if he caused the death of another "by the negligent operation ... of a vehicle ... while under the influence of an intoxicant." Sec. 940.09, 1955. The only change in the elements of the offense was the requirement of "proof of causal negligence in addition to [the] operation or handling [of a vehicle] while under the influence of an intoxicant." There was still no requirement that the defendant's intoxication cause the victim's death. See Bennett v. State, 54 Wis.2d 727, 730, 196 N.W.2d 704 (1972).

Section 940.09(1)(a), Stats., ² in its present form clearly states that a person commits a Class D felony who:

(1) causes the death of another,

(2) by the operation of a vehicle,

(3) while under the influence of an intoxicant.

Under our laws, some acts performed with no particular mental state and even without a particular result, are considered sufficiently antisocial enough to qualify as a crime, e.g., sec. 950.225(1)(b), Stats., (sexual assault using a dangerous weapon). Other acts must be accompanied by a particular mental state in the performance of an act to make them sufficiently antisocial, e.g., sec. 943.10(1) (burglary, i.e., entry with intent to steal or commit a felony). In still other instances, acts performed with a particular state of mind must cause a particular result to give them sufficient antisocial significance to justify treating the perpetrator as a criminal, e.g., sec. 940.01 (murder).

The legislature has determined that combining the operation of a motor vehicle with being in an intoxicated state is conduct which is malum prohibitum and is pervasively antisocial. Since the conduct is considered inherently evil, it conceptually cannot be divided into portions which are bad and portions which are not bad. Section 346.63, Stats., entitled "Operating under the influence of intoxicants" is violated by a person who, one, operates a motor vehicle, and two, is at the time under the influence of an intoxicant. The commission of the offense does not require any erratic or negligent driving. Because driving under the influence of an intoxicant is malum prohibitum it is impossible to separate the intoxication from the driving or the driving from the intoxication. The result is the potentially lethal and illegal combination of driving while intoxicated.

Section 940.09, Stats., requires that the prosecution prove and the jury find beyond a reasonable doubt a causal connection between the defendant's unlawful conduct, operation of a motor vehicle while intoxicated, and the victim's death. The statute does not include as an element of the crime a direct causal connection between the fact of defendant's intoxication, conceptualized as an isolated act, and the victim's death. Under this statute there is an inherently dangerous activity in which it is reasonably foreseeable that driving while intoxicated may result in...