943.23 Operating vehicle without owner's consent.

(1) In this section:

(a) “Drive" means the exercise of physical control over the speed and direction of a vehicle while it is in motion.

(b) “Major part of a vehicle" means any of the following:

1. The engine.

2. The transmission.

3. Each door allowing entrance to or egress from the passenger compartment.

4. The hood.

5. The grille.

6. Each bumper.

7. Each front fender.

8. The deck lid, tailgate or hatchback.

9. Each rear quarter panel.

10. The trunk floor pan.

11. The frame or, in the case of a unitized body, the supporting structure which serves as the frame.

12. Any part not listed under subds. 1. to 11. which has a value exceeding $500.

(c) “Operate" includes the physical manipulation or activation of any of the controls of a vehicle necessary to put it in motion.

(1g) Whoever, while possessing a dangerous weapon and by the use of, or the threat of the use of, force or the weapon against another, intentionally takes any vehicle without the consent of the owner is guilty of a Class C felony.

(1r) Whoever, by the use of force against another or by the threat of the use of force against another, intentionally takes any vehicle without the consent of the owner is guilty of a Class E felony.

(2) Except as provided in sub. (3m), whoever intentionally takes and drives any vehicle without the consent of the owner is guilty of the following:

(a) Except as provided in par. (b), a Class H felony.

(b) For a 2nd or subsequent offense, a Class F felony.

(2g) Except as provided in sub. (3m), whoever intentionally takes and drives any commercial motor vehicle without the consent of the owner is guilty of a Class G felony.

(3) Except as provided in sub. (3m), whoever intentionally drives or operates any vehicle without the consent of the owner is guilty of the following:

(a) Except as provided in par. (b), a Class I felony.

(b) For a 2nd or subsequent offense, a Class G felony.

(3g) Except as provided in sub. (3m), whoever intentionally drives or operates any commercial motor vehicle without the consent of the owner is guilty of a Class H felony.

(3m) It is an affirmative defense to a prosecution for a violation of sub. (2) or (3) if the defendant abandoned the vehicle without damage within 24 hours after the vehicle was taken from the possession of the owner. An affirmative defense under this subsection mitigates the offense to a Class A misdemeanor. A defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.

(4m) Whoever knows that the owner does not consent to the driving or operation of a vehicle and intentionally accompanies, as a passenger in the vehicle, a person while he or she violates sub. (1g), (2), (3), or (3m) is guilty of a Class A misdemeanor.

(5) Whoever intentionally removes a major part of a vehicle without the consent of the owner is guilty of a Class I felony. Whoever intentionally removes any other part or component of a vehicle without the consent of the owner is guilty of a Class A misdemeanor.

(6)

(a) In this subsection, “pecuniary loss" has the meaning described in s. 943.245 (1).

(b) In addition to the other penalties provided for violation of this section, a judge shall require a violator of sub. (2g) or (3g) to pay restitution for any damage he or she causes to a commercial motor vehicle to or on behalf of a victim, and a judge may require any other violator to pay restitution to or on behalf of a victim, regardless of whether the violator is placed on probation under s. 973.09. If restitution is ordered, the court shall consider the financial resources and future ability of the violator to pay and shall determine the method of payment. Upon the application of any interested party, the court may schedule and hold an evidentiary hearing to determine the value of the victim's pecuniary loss resulting from the offense.

History: 1977 c. 173; 1987 a. 349; 1989 a. 359; 1993 a. 92; 2001 a. 109; 2017 a. 287, 311.

To sustain a conviction for operating a car without the owner's consent, it is not necessary that the driver be the person who actually took the car. Edwards v. State, 46 Wis. 2d 249, 174 N.W.2d 269 (1970).

Leaving a vehicle because of the threat of imminent arrest is involuntary relinquishment, not abandonment under sub. (2). State v. Olson, 106 Wis. 2d 572, 317 N.W.2d 448 (1982).

Restitution under sub. (6) (b) is analyzed in the same manner as restitution under the general statute, s. 973.20. A defendant is entitled to a hearing, although it may be informal, to challenge the existence of damage to the victim, as well as the amount of damage. If damage results from a criminal episode in which the defendant played any part, the defendant is jointly and severally liable in restitution for the amount of damages. State v. Madlock, 230 Wis. 2d 324, 602 N.W.2d 104 (Ct. App. 1999), 98-2718.

Sub. (1r), 1999 stats., is applicable if the taking of the vehicle is a substantial factor in the victim's death. A substantial factor is not only the primary or immediate cause, but includes other significant factors. State v. Miller, 231 Wis. 2d 447, 605 N.W.2d 567 (Ct. App. 1999), 98-2089.

Separate prosecutions for a carjacking in violation of sub. (1g), which occurred on one day, and operating the same car without the owner's consent in violation of sub. (3), which occurred on the next day, did not violate s. 939.66 (2r) or the constitutional protection against double jeopardy. State v. McKinnie, 2002 WI App 82, 252 Wis. 2d 172, 642 N.W.2d 617, 01-2764.

Although the standard jury instruction provides that “[a] firearm is a weapon that acts by force of gunpowder," the state was not required to present evidence that a firearm operated by force of gunpowder. Essentially, both the supreme court and court of appeals have taken judicial notice of the fact that it is common knowledge that the guns at issue in previous cases operated as dangerous weapons because they used gunpowder to fire projectiles. State v. Powell, 2012 WI App 33, 340 Wis. 2d 423,812 N.W.2d 520, 11-0630.