The scoop on the recent decision to declare Wisconsin’s “Hit and Run” statute unconstitutional

On Point is pleased to present a guest post by Attorney Adam Welch of Tracy Wood and Associates. The law firm recently persuaded Dane County Circuit Court Judge William Hanrahan to declare Wis. Stat. § 346.67 facially unconstitutional and to grant their motion to dismiss a felony Hit and Run—Injury complaint. Judge Hanrahan issued an oral ruling. The transcript has not yet been prepared, so we can’t link to the decision. Adam, however, agreed to lay out the issues for On Point. Here’s Adam:

The old Hit and Run statute did not include any explicit mental state element, but the pattern jury instruction had long recognized that the duty to stop and render aid was triggered by the driver knowing that he or she had struck another person. Wis. J.I.—Criminal 2670 (2014) at 1 n.7. The existence of this element, of course, led to acquittals in cases where the element could not be proved. The legislature, in an anti-acquittal mood, attempted to rectify this problem by amending § 346.67. See 2015 Wis. Act. 319. The Act, effective April 1, 2016, attempted to abolish the “lack of knowledge” defense in two ways. First, amended § 346.67(1) provides that “[t]he operator of a vehicle involved in an accident shall reasonably investigate what was struck.” Second, it adds a new paragraph, § 346.67(3), which provides that “[a] prosecutor is not required to allege or prove” that a driver knew he or she had struck a person “in a prosecution under this section.”

JI 2670 has not yet been revised to reflect the changes made by Act 319. Attempts to write out the elements of the offense quickly turn into a tangled mess. The statute creates a two-tiered system of duties upon being involved in an accident–a duty to “reasonably investigate” what was struck and a second duty to stop and render aid. The second duty is triggered when a driver “knows or has reason to know that the accident resulted in injury or death of a person . . .” No specific mental state is required for first duty, which means that any person involved in any accident violates § 346.67 if he or she does not conduct a reasonable investigation. This would apply even when the driver does not know he or she was involved in an accident. Thus, the statue creates an affirmative duty that applies to at least some people–those who are unknowingly involved in an accident–who do not have any awareness of, or ability to comply with, that duty. This presents obvious due process problems. See, e.g., State v. Zarnke, 224 Wis. 2d 116, 589 N.W.2d 370 (1999); Elonis v. United States, 575 U.S. ___, 135 S.Ct. 2001 (2015).

Why can’t the courts save the reasonable investigation requirement by reading a mens rea into the statute, as we had long been doing with the pre-2016 Hit and Run statute? Because the new § 346.67(3) appears to explicitly relieve the prosecution of proving any sort of knowledge element.

This leads to the other major issue with the statute. The second duty imposed on the driver “the duty to stop, remain at the scene, and fulfill other requirements”is triggered when the driver knows or has reason to know that the accident resulted in injury or death of a person . . . “ There seems to be no reasonable way to reconcile this language with the language in § 346.67(3), which states that the prosecution does not need to allege or prove knowledge. When the duty is triggered by the defendant’s knowledge, how can the State prove that the defendant is subject to the duty without presenting proof of knowledge?

The State, in oral argument, suggested that a “reason to know” standard could be applied. The duty need not triggered by the defendant’s actual knowledge, but by the existence of objective facts that would cause a reasonable person to know that he or she had been in an accident resulting in injury or death. This suffers from two problems. First, it renders the use of the word “know” in the first paragraph of the statute surplusage. Second, as described above, it would again create a situation where a class of people with no actual knowledge of their duty are automatically guilty of crimes of omission.

Judge Hanrahan concluded that the statute violates due process because it is unconstitutionally vague. When the judge cannot instruct a jury on the elements of the offense, or an attorney cannot instruct his or her client on what the State has to prove at trial, the statute is ambiguous.

I expect that this issue will be heard by the Court of Appeals before long. Until then, the statute can and should be challenged. Even if some judges are reluctant to grant dismissals, the jury still needs to be instructed, and we don’t yet have a revised JI 2670 instruction. Raising the due process challenge should at least provide the opportunity to craft the best possible jury instructions.