Jan. 4, 2018 – Charged with homicide by intoxicated use of a vehicle and reckless homicide, Taran Raczka was prepared to argue that a seizure caused the accident that killed his co-worker. But the circuit court ruled the jury could not hear that evidence.

Recently, in State v. Raczka, 2016AP1057 (Dec. 20, 2017), a three-judge panel for the District II Court of Appeals ruled that the circuit court erroneously exercised its discretion by barring Raczka from presenting evidence of a seizure, and reversed.

Now Raczka, who had a history of seizures, will have an affirmative defense to the homicide charges that resulted after Raczka’s car veered off the road and crashed into a tree, killing his co-worker, Jeffrey Bonsall, as the two drove to a worksite in 2014.

Under Wis. Stat. section 940.09(2)(a), a defendant has a defense to homicide by intoxicated use of a vehicle by proving that the death would have occurred anyway, even if the driver was not drugged or drunk driving and was “exercising due care.”

After the accident, a blood test revealed that Raczka had traces of marijuana and cocaine in his blood. Raczka admitted using marijuana the weekend before the accident but said he had not used marijuana or other drugs the day of the accident.

His physician and other witnesses were prepared to support his assertion that he lost control of the vehicle due to a seizure disorder. Bonsall’s girlfriend said Raczka seemed fine when he picked up Bonsall the morning of the crash, and crash data indicated that Raczka did not attempt to break as the vehicle veered on a soft curve off the road.

A crash witness said he saw Raczka’s arms flailing uncontrollably, a symptom of seizures, and Raczka himself would have testified that he thought he had a seizure.

But the state filed a motion to prevent Raczka from presenting evidence of a seizure, arguing that he was negligent for failing to take prescribed anti-seizure medication and thus he could not be “exercising due care” when he was driving that day.

The circuit court accepted the state’s argument, concluding negligence barred the defense because it relies on an independent cause that is out of the defendant’s control.

But the appeals court accepted Raczka’s argument that a jury must decide whether he was negligent by failing to take his anti-seizure medication. This goes to whether he was “exercising due care” when he allegedly had a seizure, the intervening event.

“[W]hether Raczka’s failure to take his medication was a failure to exercise due care is a question of fact; it cannot be presumed as a matter of law,” wrote Judge Joel Hagedorn. “Many factors could impact Raczka’s duty of care and the foreseeability of harm.”

“In sum, it is for the jury to determine whether Raczka can meet his burden to prove that his choice to drive while unmedicated was an exercise of due care and whether the seizure was an intervening cause of Bonsall’s death,” wrote Judge Hagedorn, noting the same evidence is relevant to whether Raczka was criminally reckless.