Knowledgeable Wisconsin Criminal Defense Attorney in Milwaukee & Waukesha

Explaining WI Criminal Terms: Criminal Offense Modifier Definitions & Common Defenses

Helping You Understand WI Criminal Charges and Available Defenses

If you are being prosecuted for a crime in Wisconsin there are a variety of ways the offense could be charged.  Some criminal charges in Wisconsin contain accusations of something the district attorney says our client did personally, other complaints allege that our client was involved in a criminal offense as a party to the crime, while others charge attempted crimes.  Some people find it surprising that criminal charges that allege someone personally committed a crime carry the same penalties as offenses charged as a party to a crime.  However, if someone is charged with an attempted crime in Wisconsin the potential penalty is generally half of the penalty for the completed crime, whether done alone or as a party to the crime.  

The Milwaukee Criminal Defense Attorneys at Gamiño Law Offices are available to talk to you about these issues, and any other questions about your criminal case in Milwaukee or anywhere in Wisconsin.  We provide our clients with valuable information about important pretrial and trial defenses to get the best outcomes.  Our knowledgeable Milwaukee criminal lawyer defending you will litigate all possible pretrial motions to try to improve the posture of your case by limiting evidence available to the prosecution at your trial.  

If you are charged with a crime in Milwaukee or Wisconsin you probably have a lot of questions about what is going to happen, what to expect in court, the legal terms you may hear, and what defenses you have available.  When you hire our firm, a Milwaukee criminal defense attorney will sit down with you and explain what will happen in your case, from what to expect from the prosecutor to what is going to happen in court and the best defenses  for your case.  Your lawyer will give your case as much time and attention as necessary and will answer all your questions.
  Here is a guide to some of the most common questions our clients have about the terms and defenses used in Wisconsin criminal cases.
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What does it mean to "attempt" to commit a crime in Wisconsin?
​Someone can be charged with attempting to commit a crime when the person had the intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.  Wisconsin Statutes § 939.32(3).

Generally speaking, the penalty for an attempted crime is half the penalty for a completed crime.  However, the penalty for attempting a class A felony in wisconsin is a maximum of 60 years imprisonment (40 years in initial confinement and 20 years of extended supervision).

What does it mean to be charged as "party to a crime" in Wisconsin?
According to Wisconsin Statute 939.05, "whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act."

A person is concerned in the commission of the crime if the person:
  • Directly commits the crime; or
  • Intentionally aids and abets the commission of it; or
  • Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. Such a party is also concerned in the commission of any other crime which is committed in pursuance of the intended crime and which under the circumstances is a natural and probable consequence of the intended crime. 

It is a defense to a party to a crime charge to show that the person voluntarily changed his or her mind and no longer desired that the crime be committed; and the person notified the other parties involved of his or her withdrawal from participating in the offense within a reasonable time before the commission of the crime so as to allow the others also to withdraw.


What is the difference in Wisconsin between a misdemeanor offense and a felony offense?
​According to Wisconsin Statute 939.60, crimes that are punishable by time in the state prison are felonies, all other crimes are misdemeanors. Only sentences of one year or more are punishable by time in the state prison.  Therefore, any crime for which the penalty is one year or more is a felony.  Any crime that is punishable by "one year or less" that does not specify a location may result in confinement in prison if the sentence were for 1 year, and is therefore a felony.  Any crime that is punishable by less than one year can only result in a jail sentence and is therefore a misdemeanor.  However, a crime that is punishable by "one year or less" is  a misdemeanor only if the possible punishment explicitly states the place of confinement would be the county jail.  


What does it mean to have criminal intent in Wisconsin?
According to Wisconsin Statute 939.23, criminal intent is an element of any crime that where the term "intentionally," or the phrases "with intent to" or "with intent that," are used in the criminal code.  Criminal intent is also an element of a crime where the verbs "know" or "believe" are used.  
  • To prove an element of knowledge a showing must be made that the person believed the specified fact existed.
  • To prove something was done intentionally the state must show the person had "a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result." In addition, except in some circumstances, the person must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word "intentionally".
  • To prove an element that a person did something "with intent to" or "with intent that," means that the person must be shown either to have a purpose to do the thing or cause the result specified, or was aware that his or her conduct was practically certain to cause that result.
Lack of knowledge that certain conduct constitutes a criminal offense is not a defense.  Additionally, lack of knowledge of someone's age is not a defense where age is a material element of a crime.  ​


What does "criminal recklessness" mean in Wisconsin?
​According to Wisconsin Statute 939.24, criminal recklessness, or the terms "reckless" and "recklessly" as used in the criminal statutes, means that the person creates an unreasonable and substantial risk of death or great bodily harm to another human being (or unborn child) and the actor is aware of that risk.

Voluntary intoxication is generally not a defense to liability for criminal recklessness.


What does "criminal negligence" mean in Wisconsin?
​According to Wisconsin Statutes 939.25, criminal negligence, or the terms "negligent" or "negligently" as used in the criminal statutes, is "ordinary negligence to a high degree," meaning conduct that a person "should realize creates a substantial and unreasonable risk of death or great bodily harm to another."


​What are the Wisconsin intoxication defense?
  • Voluntary intoxication - may be a defense in Wisconsin if it negatives the existence of a state of mind essential to the crime.  This requires a showing that the degree of intoxication was such that the person was utterly incapable of forming the requisite intent for the crime charged.

  • Involuntary intoxication -  is a defense if intoxication is involuntarily produced and renders the person incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed or if it negatives the existence of the state of mind essential to the crime.

Wisconsin Statute § 939.42.  Addiction is not considered to make intoxication involuntary.  Similarly, not knowing the intoxicating effects of a substance taken voluntarily is not considered involuntary intoxication.  Knowledge of the potentially intoxicating side effects of a substance taken involuntarily does not make the intoxication voluntary if the substance was taken involuntarily.  This defense requires that the intoxicant have been taken involuntarily. Intoxication resulting from compliance with a doctor's advice is not deemed voluntary as a result of being advised of potential side effects. State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999).  If intoxication is an issue in your Wisconsin criminal case, contact a skilled criminal defense attorney in Milwaukee to assist you in preparing your defense.  


What is considered a mistake in Wisconsin?
​According to Wisconsin Statute 939.43, a mistake is a defense to a crime if it is an honest error, whether of fact or of law other than criminal law, and if it negatives the existence of a state of mind essential to the crime.

​Lack of knowledge or mistake about whether certain conduct constitutes a criminal offense is not a defense. Additionally, lack of knowledge or mistake about the age of a minor is not a defense where age is a material element of a crime. ​


What is the Wisconsin privilege defense? 
​If someone's behavior is privileged, even though it is otherwise criminal conduct, privilege is a defense.  There are privileges for the following conduct:
  • necessary or coerced - conduct as defined by those specific defense;
  • self defense - or in defense of another person(s) or property;
  • duty of public office - done in good faith and in fulfillment of those duties;
  • parental privilege -  when the conduct is reasonable discipline of a child and the conduct is done by a person responsible for the child's welfare.  Reasonable discipline does not include force intended to cause, or that creates an unreasonable risk, great bodily harm or death.
​There are other privileges that may apply to specific cases.  If you believe your conduct was privileged it is important that you talk to a knowledgeable Wisconsin criminal defense attorney immediately to determine if the privilege applies to the criminal conduct you are accused of, and to enforce your rights if your conduct was privileged.

What is the Wisconsin coercion defense?
​According to Wisconsin Statute 939.46, coercion is generally an available defense if the criminal conduct was a result of a threat by a person other than a co-conspirator that caused the person committing the crime reasonably to believe that his or her criminal act was the only means of preventing imminent death or great bodily harm to himself, herself, or another.  


What is the Wisconsin necessity defense?
​According to Wisconsin Statute 939.47, necessity is generally an available defense if the criminal conduct was the result of pressure of natural physical forces which caused the person reasonably to believe that his or her criminal act was the only means of preventing imminent public disaster, or imminent death or great bodily harm to the person or another.


What is the Wisconsin NGI defense?
The insanity defense in Wisconsin is begun by a plea of "not guilty by reason of mental disease or defect."   Wisconsin statute 971.15 states that "a person is not responsible for the criminal conduct if, at the time of such conduct as a result of mental disease or defect the person lacked substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law."  However, excluding criminal responsibility does not mean that there may not be a consequence after a finding of not guilty by reason of insanity.  In Wisconsin, if someone is found NGI, that person may be committed for mental health treatment and may be placed in an institution to receive mental health treatment.  A finding of not guilty by reason of mental disease or defect does not provide a free pass for the conduct involved and can seriously hamper future rights.  It is important to talk with an experienced Milwaukee Criminal Defense Attorney if mental responsibility is an issue in your case.  


What constitutes self defense in Wisconsin?
​The Wisconsin self-defense privilege is codified in § 939.48 of the Wisconsin Statutes.  It says:  "A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with his or her person by [the] other person."

  • The person may only use the degree of force reasonably necessary to prevent or stop the interference. 
  • The person may not intentionally use force which is intended or likely to cause death or great bodily harm unless the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.
  • Self defense generally may not be claimed by someone who engages in unlawful behavior likely to provoke others to attack him or her, unless the attack that ensues reasonably causes the person to believe that he or she is in imminent danger of death or great bodily harm.

If you are charged with a crime in Milwaukee, WI or any surrounding community, and you believe you acted in self defense, contact a Milwaukee criminal defense lawyer right away. The sooner you get an attorney, the sooner we can investigate your self-defense privilege against criminal charges in Milwaukee, Wisconsin.


What constitutes defense of a third party in Wisconsin?
​Under Wisconsin law, a person is privileged to use force to defend another person from real or apparent unlawful interference by someone else under the same conditions and by the same means as apply to the use of force in self defense.  
  • The person must reasonably believe that the 3rd person would be privileged to act in self-defense
  • The person must reasonably believe that their intervention is necessary for the protection of the 3rd person.
Wisconsin Statutes ​§ 939.48(3).


What is the entrapment defense in Wisconsin?
​Entrapment is a defense available when a law enforcement officer has used improper methods to induce them to commit an offense they were not otherwise disposed to commit.   If you believe you have been entrapped by Wisconsin law enforcement or police officer in Milwaukee, contact dedicated criminal defense lawyers in Milwaukee, Wisconsin.  We have litigated entrapment defenses for clients charged with serious drug offenses in the Milwaukee area to obtain successful results for our clients.  


Don't the police need a warrant to arrest me or to search me?
​According to the 4th Amendment to the United States Constitution, police are supposed to obtain a search warrant before they conduct a search and an arrest warrant before they arrest anyone unless they have alternative grounds to lawfully perform a search or arrest.  However, because of the strength of the constitutional protection against unreasonable searches and seizures, the state has the burden to convince the judge that any warrantless search or seizure was conducted in accordance with the law.  Absent sufficient proof of a valid exception to the warrant requirement by the prosecution, warrantless searches and seizures are PER SE unreasonable and evidence obtained during an illegal search may be suppressed and not available for the state to use against you in your trial.  The Milwaukee criminal defense lawyers at Gamiño Law Offices have vast experience litigating motions to suppress evidence for warrantless searches and seizures and obtaining suppression of evidence where the police exceeded the scope of the warrant or illegally obtained the warrant. If you were the subject of a search or a seizure in Milwaukee, WI, Kenosha, Racine, Ozaukee, Jefferson, Dodge, Walworth, Washington or Waukesha County, call our aggressive criminal lawyers to defend you.


What protection do I have against illegal police searches or seizures?
​If the police illegally stop, seize or arrest you, or if they illegally search you or your belongings, we can ask the court to suppress the results of anything they found during the illegal search, stop, or arrest.  If the police did not have a warrant when they searched your belongings or your home call Gamiño Law Offices!  Our criminal defense lawyers in Milwaukee can protect you from prosecution as a result of illegal police behavior.  


What are my 5th Amendment Rights?
If you have been arrested, a police officer probably "read you your rights," and it probably sounded like this:  "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."​  This is the standard Miranda warning used by law enforcement.  What is means is that the police cannot make you talk to them.  You do not have to say anything.  Anything you do say WILL be used against you.   You have the right to have a lawyer.  You have a right to talk to a lawyer before you talk to the police.  You have a right to have your lawyer with you if you decide to talk to the police.  A knowledgeable Wisconsin criminal defense lawyer can help you if the police want to question you and you have been arrested anywhere in Milwaukee, Waukesha or Wisconsin.  Do not say anything until you have spoken to an attorney.  The criminal lawyers at Gamiño Law Offices in Milwaukee and Waukesha are familiar with police questioning techniques.  Law enforcement can be misleading in their questioning and in the information they provide to you to try to elicit cooperation.  Without a knowledgeable lawyer present you may waive your rights and say something that they will use against you at any trial in your case.  We will protect you from unknowingly, unintelligently or involuntarily waiving your right to remain silent if you call our criminal defense lawyers in Milwaukee before you agree to speak with the police.  We will guard your rights!  If you have already spoken to the police we can have your statement suppressed if you waived your rights and spoke to the police unknowingly, unintelligently or involuntarily.  


Can I get my case thrown out for double jeopardy?
​If you have previously been tried and acquitted of a crime our constitution forbids the state from prosecuting you for the same offense again.  Similarly, you can only be convicted once for the same crime.  If you have entered into a plea agreement to have a charge dismissed based on an agreement to be convicted of another charge, you cannot be prosecuted for the dismissed offense again.  However, if you are convicted of an offense that later gets thrown out, generally you can be retried for that offense without it being considered double jeopardy.  If you believe your double jeopardy rights are being violated it is important that you contact a Wisconsin criminal defense lawyer in Milwaukee right away to guard your rights.  


Who can get their case expunged?
  • Juvenile Offenses - ​A juvenile who was found to be delinquent may have their record expunged.  If you were previously found delinquent and are now age 17, we can petition the court to expunge the court's record of your juvenile adjudication. The court may expunge you record if you have satisfactorily complied with the conditions of your dispositional order and you will benefit from, and society will not be harmed by, the expungement.
  • Adult Offenses - If you were under the age of 25 at the time you committed a crime, and the crime you were convicted of had a maximum penalty of 6 years imprisonment or less (nothing more serious than a class H felony), the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.  It is important that you have a knowledgeable attorney who reserves your right to request expungement when you are sentenced.  If you are under age 25 and facing misdemeanor charges or class H or I felony charges, or an unclassified crime with a penalty of 6 years or less, contact us. We are thorough Wisconsin criminal defense attorneys who will protect your right to have your court record expunged.  Expunged convictions cannot be counted against you in determining prior convictions if you are ever in any trouble again!  Expungement of your court record, unfortunately, does not require law enforcement or the prosecutor to purge their files nor does it require those agencies to destroy records of your arrest.
  • DNA Records - Our Milwaukee criminal defense lawyers can request your DNA analysis that was included in the Wisconsin DNA bank be expunged.  If your criminal conviction or adjudication has been reversed, set aside or vacated we can have all records and identifiable information in the data bank pertaining to you purged, and all samples of your DNA destroyed .


What happens if there is a bench warrant out for me?
​If there is a warrant for your arrest you are at risk of being arrested at any time and taken to jail.  We understand that sometimes people forget about a court date or are too scared to go.  Know that when you have an experienced criminal defense lawyer in Wisconsin by your side, and you come to court when you are supposed to, we will do everything in our power to ensure that you walk out with us.  If you miss court for any reason when you were required to attend, the judge court order a warrant for your arrest, sometimes courts also call a bench warrant a "capias" for your arrest.  Sometimes judges will issue a warrant if they believe you have violated the terms of your bail.  Whatever the reason, if there is a warrant for your arrest, you want to contact a Milwaukee criminal defense lawyer to help you turn yourself in and resolve the warrant as soon as possible.  Judges look more favorably on people who voluntarily turn themselves in to the court when there is a bench warrant for their arrest due to missing court or violating the terms of their bail than when someone is returned to court on a warrant after absconding.  Our lawyers can help you return to court and put your case back on track with a skilled criminal defense team.


Can I get a deferred prosecution agreement in Wisconsin?
Deferred prosecution agreements are available in most Wisconsin criminal cases.  Often you are charged with a crime and the district attorney agrees, you may obtain a deferred prosecution agreement for charges in Milwaukee, Waukesha or anywhere in Wisconsin.  Normally there will be a number of conditions that you must comply with or programs you must complete, and you may be required to demonstrate compliance with the conditions or programs or file periodic reports during the term of the deferred prosecution agreement.  However, if you successfully complete the deferred prosecution agreement then your case is dismissed with prejudice and may never be recharged.  Our Milwaukee criminal defense attorneys are skilled negotiators who have successfully resolved cases with deferred prosecution agreements in Wisconsin.  We would like to help you.

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