from an order of the circuit court for Walworth County: No.
2015CF98, JAMES L. CARSON, Judge.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
On October 27, 2014, Taran Q. Raczka crashed his car into a
tree, killing his passenger. Tests showed restricted
controlled substances in his blood, and Raczka was charged
with homicide by intoxicated use of a vehicle and
second-degree reckless homicide. Consistent with the
affirmative defense in WIS. STAT. § 940.09(2)(a)
(2015-16),  Raczka sought to present evidence that the
accident was caused by a seizure and not the presence of
controlled substances in his body. The circuit court,
however, granted a motion in limine by the State to exclude
all evidence relating to this defense. The issue is whether
the circuit court erroneously exercised its discretion by
excluding the evidence. We conclude it did. BACKGROUND
On a clear, dry October morning in 2014, Raczka picked up his
coworker, Jeffrey Bonsall, around 8:30 a.m. and headed for
work. Following a pressure washing job, the two headed off to
a painting job. But at 9:30 a.m., Raczka's car suddenly
veered off the road and crashed into a tree, killing Bonsall.
The crash data indicated that the vehicle "drove off the
road in a soft curve ... under power with no attempt at
breaking." The vehicle was travelling close to the
posted speed limit, and there was no evidence that Raczka had
been distracted while he was driving. After the accident, a
blood test revealed traces of marijuana and cocaine in
Raczka's blood, both restricted controlled substances.
Raczka admitted to using marijuana the weekend before the
crash, but denied using it the day of the crash. The State
charged Raczka with homicide by intoxicated use of a vehicle
and second-degree reckless homicide.
Wisconsin law, however, provides that a defendant has an
affirmative defense to homicide by intoxicated use of a
vehicle 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 ... did not have a
detectable amount of a restricted controlled substance in his
or her blood." WIS. STAT. § 940.09(2)(a). Raczka
sought to raise this defense and meet this burden by showing
that the accident was caused by a seizure.
To support his claim, Raczka proffered the following witness
testimony along with related medical and police
documentation. Raczka and his physician would testify that
Raczka had a history of seizures. Bonsall's girlfriend
would testify that Raczka appeared sober and awake when he
picked up Bonsall at 8:30 a.m.-just an hour before the
accident. The initial witness at the scene of the crash would
testify that "he saw Mr. Raczka's arms flailing in
an uncontrollable manner, " which Raczka's mother
would testify is what Raczka's seizures looked like.
Raczka's physician would also testify that a seizure
caused the accident. Raczka too planned to testify that
although he could not recall the accident, he believed he
suffered a seizure that caused the accident.
The State filed a motion in limine to prevent Raczka from
presenting any evidence of a seizure with respect to any of
Raczka's charges. Even assuming that Raczka suffered a
seizure, the State maintained that he should not be allowed
to offer this defense because Raczka was negligent in failing
to take his prescribed seizure medication. The State relied
on medical records indicating that Raczka was prescribed an
antiseizure medication after suffering a seizure in 2011. He
purportedly suffered another seizure sometime in the spring
of 2014, but he did not go to the doctor at that time due to
financial concerns. The records also indicated that Raczka
did not take his medication "regularly, if at all"
in the year leading up to the accident.
After a hearing, the circuit court concluded that any
evidence that Raczka had a seizure was inadmissible because
Raczka's failure to take his medication was negligent as
a matter of law and a total bar to a defense under WIS. Stat.
§ 940.09(2)(a). The court explained that as a matter of
law there must be "an independent cause out of the
control of the defendant" to raise a plausible, valid
defense. Raczka sought leave to appeal this order, which we
granted. See Wis. Stat. Rule § 809.50(3).
Whether to admit evidence is generally a discretionary
decision by the circuit court. Martindale v. Ripp,
2001 WI 113, ¶28, 246 Wis.2d 67, 629 N.W.2d 698.
However, "if the exercise of discretion is based on an
incorrect legal standard, it is an erroneous exercise of
discretion." Gallagher v. Grant-Lafayette Elec.
Coop., 2001 WI.App. 276, ¶23, 249 Wis.2d 115, 637
N.W.2d 80. Because we disagree with the court's legal
conclusion, we reverse the circuit court's order.
In an attempt to hold those who cause death by drugged
driving accountable, the legislature enacted WIS. STAT.
§ 940.09 entitled, "Homicide by intoxicated use of
a vehicle or firearm." Section 940.09(1) provides in
pertinent part that "[a]ny person who ... [c]auses the
death of another by the operation or handling of a vehicle
while under the influence of an intoxicant" or
"while the person has a detectable amount of a
restricted controlled substance in his or her blood" is
guilty of a Class D Felony. See §
940.09(1)(am), (lc)(a). With regard to controlled substances,
the State must prove: (1) the defendant operated a vehicle,
(2) the operation of the vehicle caused the death of another,
and (3) the defendant had a detectible amount of a restricted
controlled substance in his or her blood. WIS JI-CRIMINAL
1187. Accordingly, where a blood test reveals the presence of
a restricted controlled substance,  homicide by intoxicated use
of a vehicle is a type of strict liability offense; the State
only need prove that the restricted controlled substance was
present and the defendant caused the death of another by
using a motor vehicle. See id. The State need not
prove that the defendant was impaired in any way or that the
presence of restricted controlled substances had anything to
do with the accident.
Though generally structured as a strict liability offense, it
is not without exception. The legislature has provided an
affirmative defense to the charge contained in WIS. STAT.
§ 940.09(2)(a). First enacted in 1981, the original
version read as follows:
The actor has a defense if it appears by a preponderance of
the evidence that the death would have occurred even if the
actor had not been under the influence of an intoxicant or a