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The legislature clearly intended to exclude an unborn child when it limited the definition of a "human being" to include only "one who has been born alive."
One week before her due date, appellant was drinking at a local tavern when she believed she was going to have her baby. Appellant was admitted to a hospital, where her blood alcohol concentration was found to exceed 0.30 percent. Appellant gave birth to the child, who had a blood alcohol level of 0.199 percent at birth. The child was discharged to a foster family. Respondent filed a criminal complaint against appellant, charging her with attempted first-degree homicide and first-degree reckless injury. After a preliminary hearing, the trial court found probable cause to charge appellant and bound her over for trial. Respondent filed a two-count information, to which appellant pled not guilty. Appellant filed a motion to dismiss the information for lack of probable cause, but the motion was denied by the trial court.
Was the term "human being" as used in §§ 940.01 and 940.23(1) intended to include an unborn child?
The court reversed the trial court's decision. The court found that an unborn child was not a "human being," because it was not one who had been born alive as required by Wis. Stat. § 939.22(16). Therefore, probable cause did not exist to charge appellant with the crimes.