State v. Bohacheff
In State v. Bohacheff, 114 Wis. 2d 402, 407, 338 N.W.2d 466 (1983), Bohacheff was dually charged with causing great bodily harm by operation of a motor vehicle while under the influence of an intoxicant and with a blood alcohol concentration of 0.1% or more pursuant to Wis. Stat. 940.25(1)(a) and (b) (1981-82). See Bohacheff, 114 Wis. 2d at 404.
Bohacheff argued that the dual prosecution violated his double jeopardy protections. See Bohacheff, 114 Wis. 2d at 404-05.
The supreme court disagreed.
The court held that "the complaint does not violate double jeopardy protections because the statute subjects the defendant to only one conviction and one punishment." Id. at 405.However, Bohacheff, speaking directly to the "same offense" implications of that case, also said:
The defendant's position of multiple punishments rests on his assertion that (1)(a) and (1)(b) constitute one offense....Since the court determines that the legislature did not authorize two convictions (and consequently no multiple punishments), there is, of course, no need for the court to resolve the second question posited by the parties, namely, whether the two statutory provisions set forth the same offense. (Id. at 408 n.6.)
The Court concluded:
The legislature was concerned with punishing a single wrong-causing great bodily harm to another by drinking and driving-and tried to make it easier to do so by providing the two bases for liability.
Although the legislature apparently viewed the two bases for liability as sufficiently distinct in concept to allow the prosecutor to proceed with two counts and to require the jury to bring back two verdicts, we conclude that the legislature did not intend to require two convictions, even if there were two guilty verdicts, or to impose multiple punishments. This result is fair to offenders and society.
In Bohacheff, the court also rejected any suggestion that the State should be required to make a pretrial election between the two charges.
It is apparent from the statute that in allowing the prosecutor to proceed upon a violation of both paragraphs (a) or (b) for acts arising out of the same incident and in providing for two verdicts, the legislature intended not to authorize two convictions but to ensure that the prosecutor would not be forced to elect the charge or the mode of proof before trial and risk a variance between the evidence and the charge. (Id. at 416.)