author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Bruce B. Jacobson, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Bruce B. Jacobson, Respondent.
    Supreme Court

      No. 2004AP753-D.

      Decided June 14, 2005.

    2005 WI 76
    (Also reported in 697 N.W.2d 831.)
   PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law and recommendation of Referee Curry First recommending that Attorney Bruce B. Jacobson be publicly reprimanded for failing to provide one client with a full accounting of funds collected and in failing to act with reasonable diligence and promptness in representing clients in a second action.

¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law, and we agree that the appropriate discipline for the misconduct is a public reprimand. In addition, we agree with the referee that the costs of the proceeding, which are $9355 as of March 28, 2005, should be assessed against Attorney Jacobson.

¶ 3. Attorney Jacobson was admitted to practice law in Wisconsin in 1971 and practices in Milwaukee. His license to practice law in Wisconsin was suspended for a period of five months, effective January 27, 2005, for misconduct consisting of failing to provide his client with requested information about the status of his trust account and misrepresentation in communications regarding transfer of fees from the trust account. In re Disciplinary Proceedings Against Jacobson, 2004 WI 152, 277 Wis. 2d 120, 690 N.W.2d 264. In addition to the five-month suspension, the following monitoring and reporting requirements were imposed: (1) for a period of two years following the suspension, semi-annual reports are to be submitted by Attorney Jacobson's psychiatrist or other healthcare provider, as approved by the Office of Lawyer Regulation (OLR), concerning the state of his psychological condition insofar as it might impair his practice of law; (2) for a period of two years following the date of his reinstatement, Attorney Jacobson's practice of law shall be monitored by an OLR-approved attorney on a schedule set by the OLR; (3) for a period of two years after reinstatement Attorney Jacobson shall provide the OLR with quarterly reports, in a manner satisfactory to the OLR, concerning his trust account record keeping. The referee in the instant case has recommended that these reporting and monitoring requirements be increased from two years to three years. We agree with that recommendation.

¶ 4. In March 2004, the OLR filed a complaint alleging that Attorney Jacobson engaged in professional misconduct with respect to his handling of two client matters. The first matter involved Robert M. and his wife, Roxane. In or about 1989, the couple retained the Milwaukee law firm of Hiller & Frank, where Attorney Jacobson then practiced law, to represent them regarding civil claims against Dennis H. In October 1991, Robert M. stipulated to accept an $18,000 settlement in the case, which was to be paid in installments of at least $300 per month for a period of 60 months.

¶ 5. The Hiller & Frank law firm dissolved in 1994, and Attorney Jacobson established a private solo practice. He continued to handle the collection of the stipulated settlement from Dennis H. Attorney Jacobson collected various amounts from Dennis H. and disbursed some amounts to Robert M. and some amounts to himself. The OLR's complaint alleged that Attorney Jacobson and Robert M. disagreed on the fee arrangements concerning the collection proceeds. There was no written fee agreement. The complaint also alleged that Robert M. never received a billing statement from Attorney Jacobson and had no idea what the fees were. In addition, Attorney Jacobson has no billing statements or other documentation to establish that he notified Robert M. prior to making any withdrawals from the settlement proceeds.

¶ 6. Robert M. filed a grievance against Attorney Jacobson in October 2001. The OLR's complaint alleged that Attorney Jacobson said "the fee arrangement was changed four times, from an hourly fee, to a 1/3 fee, then to a 2/3 fee, and finally to a 3/3 fee, and that Robert M. agreed to those changes." However, Attorney Jacobson has no documentation of Robert M.'s purported assent to these changes in the fee arrangement.

¶ 7. Although the OLR's complaint had alleged five counts of misconduct with respect to Attorney Jacobson's handling of the Robert M. matter, the referee found that only one of those counts had been proven, that is by failing to provide Robert M. with a full accounting of the funds that he collected in the matter, despite Robert M.'s repeated requests between 1998 and 2003, Attorney Jacobson violated SCR 20:1.15(b).

¶ 8. The other misconduct alleged in the OLR's complaint involved Attorney Jacobson's handling of a medical malpractice claim for Robin E. and John E. The couple retained Attorney Jacobson to represent them and their son after their son was born with severe brain damage. The couple alleged that the doctor and the hospital were negligent in treating the wife and son during the birth.

¶ 9. In October 1998, Attorney Jacobson filed a lawsuit against two doctors, a hospital, the couple's health insurance carrier, and the Wisconsin Patients Compensation Fund. Attorney Jacobson failed to respond to interrogatories in the case and failed to provide opposing counsel with a written list of witnesses as required by the circuit court's scheduling order. Attorney Jacobson neither sought an extension of time nor sought to amend the scheduling order.

¶ 10. The hospital filed a motion for summary judgment based on Attorney Jacobson's failure to name expert witnesses and his failure to comply with the scheduling order. One of the doctors also filed a motion for summary judgment based on Attorney Jacobson's failure to prosecute the case. The Wisconsin Patients Compensation Fund filed a motion to dismiss based on Attorney Jacobson's failure to prosecute and his failure to comply with the court's scheduling .order.

¶ 11. The trial court scheduled the motions for a hearing on April 17, 2000. The hearing date was subsequently rescheduled to June 5, 2000. On May 25, 2000, Attorney Jacobson informed defense counsel that he had suffered a heart attack earlier that month and he asked that the hearing be rescheduled again. The hearing was then set for July 7, 2000. The scheduling order had provided that the parties were to complete all discovery by June 23, 2000. Attorney Jacobson failed to conduct any discovery between April 28,1999 and June 23, 2000. Attorney Jacobson appeared at the July 7, 2000 motion hearing and requested an adjournment so the plaintiffs could retain new counsel.

¶ 12. In September 2000, the plaintiffs' new attorney filed a memorandum in opposition to the motions for dismissal and an affidavit from Attorney Jacobson saying he had verbally disclosed to defense counsel that the plaintiffs would rely on testimony from a specific OB/GYN and that he also advised defense counsel of that doctor's opinions and anticipated testimony.

¶ 13. After a hearing on October 23, 2000, the trial court denied the defendants' motions to dismiss, but it noted Attorney Jacobson's failure to prosecute the case and said Attorney Jacobson's failure to name witnesses, itemize damages, provide a special permanency report, and conduct discovery "does strike me as egregious. It is thirteen months of contempt as far as I can see." While the trial court denied the motions to dismiss, it sanctioned the plaintiffs and limited them to one expert witness on the issue of causation. The court also ordered the plaintiffs to pay the costs of the defendants' motions, including reasonable attorney's fees. It further ordered Attorney Jacobson to pay various costs. The plaintiffs subsequently filed a malpractice suit against Attorney Jacobson, and his insurance carrier settled the claim for $990,000.

¶ 14. The OLR's complaint alleged, and the referee agreed, that by failing to name witnesses, failing to itemize damages, failing to provide a special permanency report, failing to respond to interrogatories, and failing to conduct discovery, Attorney Jacobson failed to act with reasonable diligence and promptness in representing a client in violation of SCR 20:1.3.

¶ 15. A hearing was held before the referee on November 12, 2004. The referee issued his report on March 7, 2005. While the OLR's post-hearing brief had argued for a 90-day suspension of Attorney Jacobson's license, consecutive to the five-month suspension that commenced January 27, 2005, the referee concluded that a public reprimand, coupled with increasing the two-year reporting and monitoring requirements ordered in the earlier disciplinary action to three years would appropriately serve the public protection interest.

¶ 16. A referee's findings of fact are to be affirmed unless they are clearly erroneous. In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137 (1997). Conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718. The record supports the referee's findings of fact and conclusions of law and we adopt them.

¶ 17. We also agree with the referee's recommendation that a public reprimand, along with increasing the reporting and monitoring requirements from two years to three years and requiring Attorney Jacobson to pay the full costs of the proceeding, is an appropriate level of discipline to impose for the misconduct at issue in this case.

¶ 18. IT IS ORDERED that Attorney Bruce B. Jacobson is publicly reprimanded for his professional misconduct as determined in this matter.

¶ 19. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Bruce B. Jacobson pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of an inability to pay those costs within that time, the license of Attorney Bruce B. Jacobson to practice law in Wisconsin shall be suspended until further order of the court.

¶ 20. IT IS FURTHER ORDERED that for a period of three years from January 27, 2005, semiannual reports shall be submitted by Attorney Jacobson's psychiatrist or other healthcare provider, as approved by the OLR, concerning the state of his psychological condition insofar as it might impair his practice of law. The first such report shall be filed six months after the date of his suspension.

¶ 21. IT IS FURTHER ORDERED that for a period of three years following the date of his reinstatement to practice law, Attorney Jacobson's practice of law shall be monitored by an OLR-approved attorney on a schedule set by the OLR.

¶ 22. IT IS FURTHER ORDERED that for a period of three years after his reinstatement Attorney Jacobson shall provide the OLR with quarterly reports, in a manner satisfactory to the OLR, concerning his trust account record keeping. These reports shall commence three months after the date of reinstatement.

       SCR 20:1.15(b) provides:
      (b) Upon receiving funds or other properly in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

       SCR 20:1.3 provides: Diligence. "A lawyer shall act with reasonable diligence and promptness in representing a client."


source: Caselaw Access Project

author: N. PATRICK CROOKS, J. DAVID T. PROSSER, J.

license: Public Domain

text:
    Village of Hobart, Plaintiff-Appellant, v. Brown County and Brown County Solid Waste Management Board, Defendants-Respondents-Petitioners.
    Supreme Court

      No. 2003AP1907.

      Oral argument March 2, 2005.

      Decided June 15, 2005.

    2005 WI 78
    (Also reported in 698 N.W.2d 83.)

      For the defendants-respondents-petitioners there were briefs by William F. White, Mary C. Turke, Christine Cooney Mansour and Michael Best & Friedrich LLP, Madison, and oral argument by Mary C. Turke.

    For the plaintiff-appellant there was a brief by Richard C. Yde and Stafford Rosenbaum LLP, Madison, and oral argument by Richard C. Yde.

    An amicus curiae brief was filed by Joseph P. Guidote, Jr., Appleton, on behalf of Outagamie and Winnebago Counties.
    An amicus curiae brief was filed by Claire Silver-man, Madison, on behalf of League of Wisconsin Municipalities.
   N. PATRICK CROOKS, J.

¶ 1. Petitioners Brown County and Brown County Solid Waste Management Board (County) appeal a decision of the court of appeals reversing the circuit court's order to grant summary judgment in its favor and dismiss the complaint filed by the Village of Hobart (Village) for a permanent injunction. The Village seeks to enjoin the County from operating a transfer station at the Brown County West Landfill. The County attempts to dismiss the Village's claim on the theory of equitable estoppel.

¶ 2. We conclude that summary judgment was improperly granted to the County. There are still genuine issues of material fact, as well as reasonable alternative inferences to be drawn from undisputed material facts, sufficient to warrant a trial. This case should be remanded to the circuit court to determine if building the transfer station violated a zoning ordinance, or any related ordinance, of the Village. If the court finds such a violation, and the Village continues in its attempt to enforce that ordinance, the circuit court must weigh the equitable considerations, including the County's equitable defenses, pursuant to this court's ruling in Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998). We therefore affirm the court of appeals' decision reversing the summary judgment of the circuit court and remand this case for further proceedings consistent with this opinion.

i

¶ 3. All residential, commercial, and industrial solid waste generated by the Oneida Tribe of Indians and the 13 incorporated municipalities in Brown County is received and disposed of by the County. The majority of the solid waste was disposed of at the Brown County East Landfill, until it reached capacity in May 2003. In anticipation of this, the County entered into the "Tri-County Solid Waste Agreement" with Outag-amie and Winnebago Counties. Pursuant to this agreement, the County is allowed to dispose of its solid waste at the landfill of one of the participating counties.

¶ 4. In order to address concerns regarding the transportation of refuse to such a landfill, the County decided to construct a new solid waste transfer station to consolidate the waste before hauling it to a landfill in Outagamie or Winnebago County. The County proposed the construction and operation of this transfer station at the West Landfill, located in the Village. The County had purchased this property in May 1976, and operated it as an active landfill until July 1998. Before its official closure, the County managed the property as an "open area/wildlife refuge." After July 1998, a portion of the former landfill was opened as a pet exercise area.

¶ 5. On February 18, 2002, the Village and the County met, at the Village's request, to discuss the construction of the transfer station at the West Landfill. During this meeting, the Village represented to the County that the proposed transfer station would comply with the West Landfill's current use and zoning. A second meeting between these parties was held one week later, on February 25, 2002, where the County suggested an agreement in which it would own the transfer station and pay the Village an annual franchise fee of $14,000.

¶ 6. The Village unanimously accepted the County's proposal at a public meeting of the Village Board on March 5, 2002. During the meeting, the Village Chairman stated to those present that the County did not require approval from the Village for the construction of the transfer station, because the West Landfill was properly zoned and the transfer station would be a permitted use in the zoning district.

¶ 7. On May 6, 2002, the Village Board, pursuant to its March 5 vote, presented the County with a "Memorandum of Understanding" (MOU), which set forth the Village's approval of the construction and operation of the transfer station, and informed the County of the Village's commitment to negotiate a 30-year contract with the County. The MOU provided, in relevant part: "It is the Town of Hobart's intention, per the above-approved motion, to approve the construction and operation of a landfill transfer station at the Brown County West Landfill site in the Town of Hobart." The Village and County signed the MOU on May 1, 2002, and May 6, 2002, respectively.

¶ 8. After receiving the MOU, the County requested a zoning map from the Village. The Village Clerk provided the County with a map that was dated May 17, 2002. The map showed the West Landfill area as "Public Property."

¶ 9. Village officials informed its residents about the transfer station in a letter dated August 13, 2002. The letter, titled "Village Of Hobart Concerns Regarding The Solid Waste Transfer Station On The Brown County West Landfill Property," explained that the County could have constructed the transfer station without Village approval or involvement, because it was a "permitted use." The letter also informed residents that the Board would be discussing the transfer station further on August 20, 2002, and encouraged all interested parties to attend.

¶ 10. On August 21, 2002, the Village's Site Review Committee unanimously approved the County's application. In reliance on this approval, the County hired a general contractor to begin construction of the transfer station. The contract was awarded for $1,332,076 and required construction to commence on or before October 14, 2002.

¶ 11. On September 24, 2002, the Village Board, in response to a negative reaction from residents, voted to reject the permit and building of the waste transfer site. The Village Board informed the County of its decision, and its rescission of the MOU, in a letter dated October 1, 2002. The Village Clerk then declined to issue the County a sewer permit number to enter on its building permit application. The clerk stated that she had been instructed not to issue the County any permits regarding the transfer station.

¶ 12. The County sought advice from its corporation counsel on whether it could proceed with the construction of the transfer station without the permits. The corporation counsel informed the County that, pursuant to Wis. Stat. § 13.48(13)(a) (2001-02), it did not need a building permit from the Village prior to construction. After the County received this letter, it commenced construction on October 9, 2002.

¶ 13. The Village filed this lawsuit on October 24, 2002, seeking a permanent injunction to prohibit the County from constructing and operating the transfer station at the West Landfill. In its complaint, the Village alleged that construction of the transfer station was in violation of the Village's zoning ordinance, that the County had not obtained any building permits for construction, that the construction and operation of the transfer station was contrary to Village of Hobart Solid Waste and Nuisance Ordinance Section 10.1, and that the County failed to comply with Wis. Stat. § 289.22.

¶ 14. Both parties filed motions for summary judgment. On May 6, 2003, the Brown County Circuit Court, Peter J. Naze, Judge, granted the County's motion for summary judgment, denied the Village's motion, and dismissed its complaint. The court concluded, first, that "the Village should be estopped from asserting that the County has violated the zoning ordinance." Second, the court held that the County, as an "arm of the State, is not required to obtain local approval since the statutes involved do not apply to Transfer Stations." The Village appealed.

¶ 15. The court of appeals reversed the summary judgment ordered by the circuit court and remanded the case for further proceedings. It held that "a circuit court can apply equitable estoppel to bar a municipality from enforcing a zoning ordinance." Vill. of Hobart v. Brown County, 2004 WI App 66, ¶ 2, 271 Wis. 2d 268, 678 N.W.2d 402. However, the court determined that the requirements for equitable estoppel had not been established in this case. Further, the court relied on the case Forest County v. Goode for the proposition that a court sitting in equity should weigh "traditional equitable considerations" before deciding whether or not to issue an injunction for a zoning ordinance violation. See Vill of Hobart, 271 Wis. 2d 268, ¶ 16.

¶ 16. In determining that the County did not establish the necessary elements for equitable estoppel, the court of appeals held that the County did not show that it reasonably relied upon the Village's preconstruction actions when it decided to begin construction of the transfer station. Instead, the court determined that the County relied on the advice of its corporation counsel before commencing construction. Finally, the court held that the transfer station's construction and operation could not be justified by either Wis. Stat. § 13.48(13)(a) or on a vested rights theory.

¶ 17. On March 25, 2004, the County filed a petition for review with this court. We accepted review and now affirm the decision of the court of appeals and remand the matter to the circuit court.

I — I I — I

¶ 18. We first address whether summary judgment was appropriately granted. Although our review of the circuit court's grant of summary judgment is de novo, we apply the same methodology as used by the circuit court and court of appeals, and, of course, benefit from those analyses. See Atkins v. Swimwest Family Fitness Ctr., 2005 WI 4, ¶ 11, 277 Wis. 2d 303, 691 N.W.2d 334. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wis. Stat. § 802.08(2).

¶ 19. Our first step in this analysis is to determine whether the pleadings set forth a sufficient claim for relief. Trinity Evangelical v. Tower Ins. Co., 2003 WI 46, ¶ 32, 261 Wis. 2d 333, 661 N.W.2d 789. "If such a claim is set forth, and the moving party has established a prima facie case for summary judgment, 'we examine the record to determine whether there "exist[s] disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial."'" Cent. Corp. v. Research Prods. Corp., 2004 WI 76, ¶ 18, 272 Wis. 2d 561, 681 N.W.2d 178 (quoting Trinity, 261 Wis. 2d 333, ¶ 32).

¶ 20. We conclude, based on our review of the record, that there are genuine issues of material fact and reasonable alternative inferences that may be drawn from undisputed material facts in this case. Those genuine issues and reasonable alternative inferences include at least the following: whether the map provided by the Village to the County was a Village zoning map, what was the proper zoning and whether the County complied with such zoning ordinance and any related ordinance, what representations were made by the Village Board to the County about the proposed siting for the transfer station and whether such representations created any zoning problems, and whether the letter from the County's corporation counsel advised the County that the zoning for the transfer station was proper, and thus affected the County's claimed reliance on the Village's representations.

¶ 21. While the above list may not be complete, it clearly demonstrates that there are genuine issues of material fact and reasonable alternative inferences to be drawn from undisputed material facts. Under such circumstances, the circuit court should not have granted the County's motion for summary judgment when it did.

I — }

¶ 22. Upon remand, the circuit court must address whether the construction and operation of the transfer station violated a zoning ordinance, or any-related ordinance, of the Village. The County argues that the court of appeals erred in assuming the transfer station violated Village zoning. Specifically, the County argues that the transfer station is either zoned "Public Property" as indicated in the map provided by the Village or the ordinance is ambiguous and should be construed as including a public use zoning classification. Conversely, the Village argues that no reasonable interpretation of its zoning ordinances would permit the construction of the transfer station. The Village argues that the map that it furnished to the County cannot, by itself, create new zoning districts.

¶ 23. The circuit court apparently did not address the question of whether there was a violation of the Village ordinance, but rather held that the Village was estopped from asserting such a violation. The court of appeals, on the other hand, assumed, based on its review of the record, that the County violated a Village ordinance. We recognize that if the circuit court determines on remand that there was no violation of Village ordinances, the Village's claim for injunctive relief must, of course, fail.

IV

¶ 24. If the circuit court determines that the County violated a Village ordinance, the next issue is whether the Village can be estopped from asserting such a violation. The County argues that a municipality can he estopped from asserting a violation of its ordinances. Specifically, the County disputes the court of appeals' reliance on City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 142 N.W.2d 169 (1966). The County contends, instead, that this court should rely on Russell Dairy Stores v. Chippewa Falls, 272 Wis. 138, 74 N.W.2d 759 (1956), as it stands for the proposition that estoppel can lie against a municipality. In contrast, the Village argues that the court of appeals correctly determined that a municipality is free to assert a violation of its ordinances, because any other decision would amount to a determination that the ordinance can be amended without complying with statutory requirements.

¶ 25. We agree with the court of appeals that a municipality cannot be estopped from asserting a violation of its zoning ordinance in court. See Vill. of Hobart, 271 Wis. 2d 268, ¶ 25 n.11. In Leavitt, we stated that "this court is firmly committed to the principle that estoppel 'will not lie against a municipality so as to bar it from enforcing an ordinance enacted pursuant to the police power.'" Leavitt, 31 Wis. 2d at 76 (footnote omitted). In that case, the defendant contended that the city should have been estopped from revoking his occupancy permit and prosecuting the action, because in the past occupancy permits had been granted to tenants for uses violative of the zoning ordinance, and he had spent a considerable sum of money in reliance on the validity of the permit. We disagreed and held that "erroneous acts of municipal officers do not afford a basis to estop the municipality from enforcing its ordinances enacted pursuant to the police power." Id. at 76-77. In other words, "citizens have a right to rely upon city officials not having acted in violation of the ordinance, and, when such officials do so act, their acts should not afford a basis for estopping the city from later enforcing the ordinance." Id. at 78-79.

¶ 26. More recently, in Willow Creek Ranch v. Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693, we reaffirmed that the erroneous acts or representations of public officials cannot result in the estoppel of a municipality from asserting that there has been a violation of its zoning ordinance. There, the plaintiff sought to estop the municipality from asserting immunity as a defense and from preventing the operation of a game bird farm due to the misrepresentations of the Town Chairperson. Relying on Leavitt, we denied the plaintiffs request for equitable estoppel of the town and county, where they were attempting to prevent the operation of a game bird farm. We held: "Binding municipalities to every representation made by subordinate employees would produce severe results for the municipalities. Endless litigation would ensue over the words of those employees, and important municipal decisions would be delayed pending resolution of those suits." Id., ¶ 50.

¶ 27. Moreover, we reject the County's reliance on Russell Dairy Stores. In that case, a City of Chippewa Falls' ordinance prevented anyone from constructing a driveway by cutting or altering curbs. The plaintiff was granted a permit by the city council to construct a driveway that altered a curb, as he agreed to provide a concrete apron to replace it. The plaintiff constructed his driveway upon reliance on the permit. A few months later, the city council revoked the plaintiffs permit. This court applied the doctrine of equitable estoppel to prevent the city from revoking a permit that it had already granted. We also recognized that the plaintiff had gained a vested right in the permit, which could not later be revoked. See Russell Dairy Stores, 272 Wis. 2d at 145-46.

¶ 28. Russell Dairy Stores is not controlling for several reasons. First, the County did not have vested rights here like the plaintiff had in that case. We agree with the court of appeals that " 'in order for a developer's rights to vest, the developer must submit an application for a building permit which conforms to the zoning or building code requirements in effect at the time of the application.'" Vill. of Hobart, 271 Wis. 2d 268, ¶ 30 (quoting Lake Bluff Hous. v. City of S. Milwaukee, 197 Wis. 2d 157, 177, 540 N.W.2d 189 (1995)). Here, the County claimed that the West Landfill's zoning classification was "public use," which apparently did not conform with the zoning requirements. See id. Next, the issuance of the permit in Russell Dairy Stores did not violate any law or the city's contract with the state, an issue that was involved in Willow Creek Ranch, 235 Wis. 2d 409, ¶ 57. In the present case, however, there is an asserted violation of the Village zoning ordinance and related ordinances.

¶ 29. Keeping the above cases in mind, we further recognize that we do not apply equitable estoppel" 'as freely against governmental agencies as [we do] in the case of private persons.'" DOR v. Moebius Printing Co., 89 Wis. 2d 610, 638, 279 N.W.2d 213 (1979) (quoting Libby, McNeill & Libby v. Dept. of Taxation, 260 Wis. 551, 51 N.W.2d 796 (1952)). "'[I]t is not a happy occasion when the Government's hands, performing duties on behalf of the public, are tied by the acts and conduct of particular officials. . . .' " Milas v. Labor Ass'n of Wisconsin, Inc., 214 Wis. 2d 1, 14, 571 N.W.2d 656 (1997) (quoting Schuster v. Comm'r of Internal Revenue, 312 F.2d 311, 317 (9th Cir. 1962)). If we allow the estoppel doctrine to hinder the government's exercise of its police power, we will be "expos [ing] a significant number of persons to a risk the legislature has determined to be contrary to their safety, welfare, health or morals." Moebius, 89 Wis. 2d at 640. This is particularly true in the context of zoning. In Wis. Stat. § 62.23(7)(a), the legislature expressly states that zoning regulations are "for the purpose of promoting health, safety, morals or the general welfare of the community. ..."

¶ 30. We do not dispute that "zoning may be the most essential function performed by local government, since it allows a municipality to protect its citizens' quality of life." Lake Bluff Hous. v. City of S. Milwaukee, 2001 WI App 150, ¶ 25, 246 Wis. 2d 785, 632 N.W.2d 485. Thus, generally we will not allow estoppel to be invoked against the government for the erroneous acts or representations of its officials. To do so would elevate the mistake of the official above the needs of the citizens and their right to rely on the laws enacted. When we read the cases that we discussed herein, together with Forest County v. Goode and Town of Delafield v. Winkelman, 2004 WI 17, 269 Wis. 2d 109, 675 N.W.2d 470, we conclude that a municipality cannot be estopped from asserting a violation and seeking to enforce its ordinances, but that a circuit court has authority to exercise its discretion in deciding whether to grant enforcement.

V

¶ 31. The final issue we address is the proper procedure for the circuit court to apply if it finds that there was a violation of the Village's zoning ordinance, or any related ordinance, and the municipality asserts such a violation and attempts to enforce it. In this case, the Village asked for a permanent injunction against the operation of the transfer station by the County, which clearly is a request for enforcement of its claimed applicable ordinances.

¶ 32. This court has established that when a party seeks to enforce an ordinance by pursuing an injunction, or other such relief, the circuit court can exercise its discretion in deciding whether, and in what form, to grant the injunctive relief. See Forest County v. Goode, 219 Wis. 2d at 670. Specifically, we have determined that "[i]njunctive relief is not ordered as a matter of course, but instead rests on the sound discretion of the court, to be used in accordance with well-settled equitable principles and in light of all the facts and circumstances of the case." Id.; see McKinnon v. Benedict, 38 Wis. 2d 607, 616, 157 N.W.2d 665 (1968). Thus, in this case, the circuit court must determine if its equitable power to deny an injunction, or any other enforcement mechanisms, is appropriate under the totality of the circumstances presented.

¶ 33. For guidance, we look to our decision in Forest County v. Goode. In Goode, the county brought an action against the owner of lakefront property, seeking to enforce its zoning ordinance. The zoning administrator met with Goode and, together, they measured and staked a distance of 50 feet from the ordinary high water mark to the location of his new house, as required under the county zoning ordinance. Goode then obtained a building permit to construct his new house 50 feet from the ordinary high water mark. Upon later determining that the distance did not meet the minimum setback requirement, the county sought to enforce the zoning ordinance. Goode responded that the violation was unintentional. In Goode, we determined that a circuit court retains its equitable power to deny injunctive relief, even if the plaintiff has proven a prima facie case of zoning ordinance violation. See Goode, 219 Wis. 2d at 669.

¶ 34. In doing so, we provided guidance on how to apply equitable considerations:

[ T]he circuit court should take evidence and weigh any applicable equitable considerations including the substantial interest of the citizens of Wisconsin . .. the extent of the violation, the good faith of other parties, any available equitable defenses such as laches, estop-pel or unclean hands, the degree of hardship compliance will create, and the role, if any, the government played in contributing to the violation.

Id. at 684. Ultimately, this court concluded that upon the determination of an ordinance violation, the proper procedure for a circuit court is to grant the injunction, except when it is presented with compelling equitable reasons to deny it. Id

¶ 35. As a result of this holding, it is argued that the zoning violator now has " 'two kicks at the cat,' once to defend against the claim that there is a violation and, second, to defend against enforcement of a sanction for that violation." Vill. of Hobart, 271 Wis. 2d 268, ¶ 25 n.11 (quoting Town of Delafied v. Winkelman, 2003 WI App 92, ¶ 1, 264 Wis. 2d 264, 663 N.W.2d 324). The County now argues, in its second "kick at the cat," that if a violation is established the Village should be es-topped from enforcing any applicable ordinance. Specifically, it contends that it reasonably relied on the Village's zoning representation, and that such reliance was not negated by asking its corporation counsel for legal advice on the necessity of a building permit for the transfer station. The County argues that the court should use its equitable powers and deny the Village an injunction against the County. The Village, on the other hand, claims that the County did not reasonably rely on any of its actions when it decided to commence construction of the transfer station.

¶ .36. We recognize, as did the court of appeals, that the test for equitable estoppel consists of four elements: " '(1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment.'" Vill. of Hobart, 271 Wis. 2d 268, ¶ 18; see also Milas, 214 Wis. 2d at 8. The court of appeals, based upon its review of the facts, held as a matter of law that the County did not prove all of the elements of equitable estoppel. Vill. of Hobart, 271 Wis. 2d 268, ¶ 20. Specifically, the court determined that the County did not commence construction of the transfer station in reliance on the Village's representations, but rather on advice from its corporation counsel: "Counsel advised the County that, pursuant to Wis. Stat. § 13.48(13)(a), the Village's turnabout could not stop the County from building the transfer station, even though the County did not have the necessary building permits.... It is undisputed that in reliance upon this advice, the County commenced construction." Id.

¶ 37. The issue regarding the meaning of and reliance on the corporation counsel's letter remains in dispute. The court of appeals may have misinterpreted, and thus overemphasized, the County's reliance on the advice given by its corporation counsel. A fair reading of the letter does not necessarily lead to the conclusion that the corporation counsel asserted that there was no zoning problem. The circuit court must determine whether there has been a violation of the Village's ordinances, and if the Village continues in its attempt to enforce its ordinances by seeking injunctive relief, whether, consistent with Forest County v. Goode and the equitable considerations outlined therein, the court should enforce any such ordinance and grant the Village an injunction.

VI

¶ 38. In sum, we conclude that summary judgment was improperly granted to the County. There are still genuine issues of material fact, as well as reasonable alternative inferences to be drawn from undisputed material facts, sufficient to warrant a trial. We also conclude that this case should be remanded to the circuit court to determine if building the transfer station violated a zoning ordinance, or any related ordinances, of the Village. If the court finds such a violation, and the Village continues in its attempt to enforce that ordinance, the circuit court must weigh the equitable considerations, including the County's equitable defenses, pursuant to this court's ruling in Forest County v. Goode. For the above stated reasons, we affirm the court of appeals' decision reversing the summary judgment of the circuit court, and remand the case for further proceedings consistent with this opinion.

By the Court.— The decision of the court of appeals is affirmed.

DAVID T. PROSSER, J.

¶ 39. (concurring). I agree with the mandate to remand this case to the circuit court for the resolution of disputed facts. I also applaud the court's reaffirmation of Forest County v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998). But I disagree with some of the court's analysis and its conclusion that "a municipality cannot be estopped from asserting a violation of its zoning ordinance in court." Majority op., ¶ 25. As a legal proposition, the quoted statement is too broad, and it sends the wrong message to local governments.

¶ 40. This case involves zoning. There are many different scenarios in which zoning issues may be litigated. They range from a private property owner's suit against a municipality for its refusal to issue a needed permit to a municipality's suit to raze a building that violates a zoning ordinance.

¶ 41. A municipality that wishes to enforce a zoning ordinance may become involved in litigation as either a plaintiff or a defendant. But, according to the majority, the party status of the municipality makes a big difference in the outcome of the dispute.

¶ 42. In this case, Brown County and the Village of Hobart had extensive dealings over a period of six months. The Village Board was cooperative and reassuring, and the County acted in reliance on its representations and official actions. Then the Village changed its position and ordered its clerk to deny the County a sewer permit number for a building permit. By the time the Village changed its position, the County had incurred approximately $130,000 in engineering fees and it had awarded a contract to build the transfer station. The contract provided that construction was to commence no later than October 14, 2002. The County began construction without receiving building permits, arguably in violation of the Village's zoning ordinance.

¶ 43. In theory, the County could have waited and sought a declaratory judgment against the Village on the zoning question or a writ of mandamus on the building permits. However, its failure on a declaratory judgment would have hurt the County's position, and mandamus may not have been a viable remedy. See Beres v. New Berlin, 34 Wis. 2d 229, 231-32, 148 N.W.2d 653 (1967). Taking the time to seek a conditional use permit from Village officials and then appealing their refusal to a board of adjustment, would not have been a fruitful option for the County in terms of either timing or result.

¶ 44. Fortunately, the Village brought an enforcement action. In this litigation the County was the defendant and it was entitled to raise all defenses that are authorized in Goode ("Equitable defenses, such as laches, estoppel, or unclean hands should... be weighed in appropriate cases."). Goode, 219 Wis. 2d at 681-82 (emphasis added).

¶ 45. In its decision, the court of appeals said: "We conclude that when considering whether to issue an injunction for a zoning violation, a circuit court can apply equitable estoppel to bar a municipality from enforcing a zoning ordinance." Vill. of Hobart v. Brown County, 2004 WI App 66, ¶ 2, 271 Wis. 2d 268, 678 N.W.2d 402 (emphasis added). "[Ejquitable estoppel can he a basis upon which the trial court refuses to grant injunctive relief for a zoning violation." Id., ¶ 16.

¶ 46. I agree with this conclusion but am not certain where the majority stands. Even if the majority agrees with the court of appeals, it is forcing a landowner like Brown County to violate the zoning ordinance before it can obtain equitable relief. This strikes me not only as risky for the landowner hut also nonsensical as a principle of law.

¶ 47. What I do not understand, given the court of appeals' conclusion about equitable estoppel as a defense, is why that court cited City of Milwaukee v. Leavitt, 31 Wis. 2d 72, 76, 142 N.W.2d 169 (1966), to the effect that "While municipal and other government units are not wholly immune from application of the doctrine of equitable estoppel, this court is firmly committed to the principle that estoppel 'will not lie against a municipality so as to bar it from enforcing an ordinance enacted pursuant to the police power." Vill. of Hobart, 271 Wis. 2d 268, ¶ 25 (emphasis added).

¶ 48. This quote comes from a case in which a city was revoking the defendant's occupancy permit. This quote comes from a final enforcement action. This quote is simply inconsistent with Goode and with the use of equitable estoppel in a zoning enforcement action.

¶ 49. The majority not only affirms the quote but also adds that "If we allow the estoppel doctrine to hinder the government's exercise of its police power, we will be 'expos [ing] a significant number of persons to a risk the legislature has determined to be contrary to their safety, welfare, health or morals.' This is particularly true in the context of zoning." Majority op., ¶ 29 (internal citation omitted). This language is not consistent with Goode.

¶ 50. On the facts of this case, the County is being penalized for consulting with its corporation counsel and following his advice. What was the County supposed to do? If the County had surrendered to the Village on the transfer station and sued the Village for money damages, it would not have solved the solid waste problem that precipitated this situation.

¶ 51. If the County had immediately sought a mandamus action to secure building permits, it should have been able to invoke equitable estoppel so that the Village could not assert its zoning ordinance as a defense. Of course, the County would have had to prove its case. However, I see nothing in the majority opinion that suggests that this option is a possibility.

¶ 52. The bottom line is this: If local officials act irresponsibly, leading on landowners (including counties) and then pulling the rug out from under them, there ought to be a way for the landowners to obtain relief without first violating the zoning ordinance. Equitable estoppel, with stringent requirements to obtain it, strikes me as a reasonable solution.

¶ 53. Because the majority opinion is internally inconsistent and undermines the rule in Goode, I respectfully concur.

¶ 54. I am authorized to state that Justice JON E WILCOX and Justice LOUIS B. BUTLER, JR. join this opinion.

       The motion was transcribed as follows:
      Motion by Dave Dillenburg to accept proposal #3 which states Brown County to design, permit and build transfer station at the West Landfill, Brown County to contract for operation of transfer station and transport of refuse to the landfill, Brown County would provide all maintenance on building & roadways, town of Hobart would have no liability for transfer station operation and to negotiate a contract for 30 years at $14,000 annually beginning January 2003 and adjusted annually by the CPI-U index....

       During the course of these proceedings, the Town of Hobart became the Village of Hobart.

       It is now claimed that the West Landfill is actually zoned as an "A-2 exclusive agricultural district." If that is correct, then pursuant to Village of Hobart Wis. Ordinance § 6.010, the transfer station is neither a permitted use nor a conditional use.

       As of October 1, 2002, the County had spent approximately $130,000 in fees, although construction had not yet begun.

       Unless otherwise indicated all references to the Wisconsin Statutes are to the 2001-02 edition.
      Wisconsin Stat. § 13.48(13) (a) states in relevant part:
      Except as provided in par. (b) or (c), every building, structure or facility that is constructed for the benefit of or use of the state, any state agency, board, commission or department... shall be in compliance with all applicable state laws, rules, codes and regulations but the construction is not subject to the ordinances or regulations of the municipality in which the construction takes place except zoning, including without limitation because of enumeration ordinances or regulations relating to materials used, permits, supervision of construction or installation, payment of permit fees, or other restrictions.

       We note that the transfer station's construction has been completed and that the County has been operating the facility since May 2003. The total cost of construction was approximately $1.3 million.

       Section 10.105 of the Village of Hobart Solid Waste and Nuisance Ordinance states:
      Constructing, Maintaining and Operating a Solid Waste Facility. No Person shall construct, maintain or operate a solid waste facility for disposal, storage or treatment of solid waste within the TOWN, unless the Person has received a valid license from the TOWN Board specifically authorizing construction, maintenance and operation of a solid waste facility. Upon issuance of the license, the licensee shall fully comply with conditions therein.

       We assume, without deciding, that the County is an "arm of the state." We note, however, that Wis. Stat. § 13.48(13)(a) requires compliance with the zoning ordinances and regulations of the municipality involved.

       We have typically refused to apply estoppel against the government when its application would interfere with the police power for the protection of the public health, safety, or general welfare. See DOR v. Moebius Printing Co., 89 Wis. 2d 610, 639, 279 N.W.2d 213 (1979) (citing State v. Chippewa Cable Co., 21 Wis. 2d 598, 608-09, 124 N.W.2d 616 (1963); Park Bldg. Corp. v. Indus. Comm'n, 9 Wis. 2d 78, 87-88, 100 N.W.2d 571 (1960); Town of Richmond v. Murdock, 70 Wis. 2d 642, 653-54, 235 N.W.2d 497 (1975); McKenna v. State Highway Comm'n, 28 Wis. 2d 179, 186, 135 N.W.2d 827 (1965); Milwaukee v. Milwaukee Amusement, Inc., 22 Wis. 2d 240, 252-53, 125 N.W.2d 625 (1964)).

       This holding was reaffirmed recently by our decision in Town of Delafield v. Winkelman, 2004 WI 17, 269 Wis. 2d 109, 675 N.W.2d 470. The court held that "when a governmental body exercises its authority pursuant to either Wis. Stat. §§ 59.69(11) or 62.23(8) and seeks injunctive relief, the circuit court retains the power to deny the relief sought and the property owners can defend themselves in equity." Id., ¶ 28.

       The letter from the corporation counsel is as follows:
      You have requested an opinion regarding two issues, both of which involve the proposed transfer station at the west landfill site located in the Village of Hobart. The first question concerns a May 19, 1976 resolution of the Brown County Board of Supervisors dealing with the west landfill site, copy attached. This resolution is clearly one which gives the Solid Waste Management Board authority to utilize the landfill site for as long as it deems necessary as part of the Solid Waste management system for Brown County. This resolution is of no legal significance whatsoever in prohibiting the proposed transfer station on County owned property at the west landfill in the Village of Hobart. This property has continuously been used by the Solid Waste Management Board for waste management purposes, and a transfer station would be consistent with that continued use. Nothing in this resolution, and particularly in the operative "BE IT RESOLVED" paragraphs, removes any authority from the Solid Waste Management Board from utilizing the west landfill site for a transfer station.
      The second issue involves the question of whether or not local permits are required for construction of the transfer station. Sec. 13.48(13), Stats., provides that this type of project is not subject to local ordinances or regulations relating to permits, materials used, supervision of construction or installation, payment of permit fees, or other restrictions. This provision was interpreted by the Attorney General's office in January, 1997 to the effect that County building projects are governed by this statute, and as a result, the Solid Waste Management Board is not required to obtain any Village permits for the construction of this transfer station.

        The relevant portion of the letter relied upon by the court of appeals reads as follows: "This property has continuously been used by the Solid Waste Management Board for waste management purposes, and a transfer station would be consistent with that. ..."

       Moreover, the facts in City of Milwaukee v. Leavitt are markedly different from the facts in this case. In Leavitt, the court held that "erroneous acts of municipal officers do not afford a basis to estop the municipality from enforcing its ordinances enacted pursuant to the police power." Leavitt, 31 Wis. 2d 72, 76-77, 142 N.W.2d 169 (1966) (emphasis added). In this case, the County relied not only on the acts of individual officers, but also on the acts of the highest municipal body, the Village Board. See majority op., ¶¶ 5-7. Individual municipal officers may act roguishly. The Village Board's imprimatur lends an added sense of credence to individual officers' representations.


author: PATIENCE DRAKE ROGGENSACK, J.

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Peter A. Fonte,† Defendant-Appellant.
    Supreme Court

      No. 2003AP2097-CR.

      Oral argument March 10, 2005.

    Decided June 15, 2005.

    2005 WI 77
    (Also reported in 698 N.W.2d 594.)

      For the plaintiff-respondent-petitioner the cause was argued by William L. Gansner, assistant attorney general, with whom on the briefs was Peggy A. Lauten-schlager, attorney general.
    For the defendant-appellant there was a brief and oral argument by Martha K. Askins, assistant state public defender.
   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. The State seeks review of a court of appeals decision reversing the conviction of Peter Fonte for homicide by intoxicated operation of a vehicle under Wis. Stat. § 940.09 (2001-02), after a boating accident that resulted in the death of one of Fonte's friends. The five issues presented on appeal are: (1) whether the jury instruction that was given for chemical tests of intoxication denied Fonte of a fair trial; (2) whether there was sufficient evidence in the record that Fonte was operating the boat at the time of the accident to support the conviction; (3) whether Fonte was denied effective assistance of counsel; (4) whether Fonte's motion for change of venue due to pretrial publicity should have been granted; and (5) whether § 940.09 is constitutional. Because we rule against Fonte on each issue, we reverse the court of appeals and remand the case to the circuit court with directions to reinstate Fonte's conviction.

I. BACKGROUND

¶ 2. This case arose from a boating accident on Geneva Lake on July 16, 2001. Several days before, Fonte and a group of friends had gathered for a concert at Alpine Valley. The group stayed in the area, and on the day of the accident, they rented a motorboat to spend a day on the lake. The group included Fonte, Traci Paladino, Chad Mattingly, Lee Bovarnick, Kelly Pleffner and Christopher Gibbs.

¶ 3. While they were out on the lake, at least four people jumped into the water to swim, including Pala-dino, Pleffner and Gibbs. Pleffner testified that the motor was idling and the boat was drifting while they swam. Pleffner saw the boat coming toward her when it was approximately five feet away. She attempted to dive below the surface of the water to avoid the boat, but felt the bottom of the boat scrape her side. When Pleffner resurfaced, she saw Gibbs and heard someone ask, "Where's Traci?" Pleffner then noticed there was blood in the water. Several members of the group jumped in the water to search for Paladino. Shortly thereafter the Water Safety Patrol arrived and a dive team took up the search.

¶ 4. Walworth County sheriffs deputies took the group to the City of Lake Geneva Police Department where officers separated them for individual questioning. Walworth County Deputy Sheriff Jeffery Patek interviewed Fonte. Fonte identified himself as Anthony Michaels. Patek smelled intoxicants coming from Fonte and noticed that his eyes were bloodshot and his speech was impaired. Patek asked Fonte if he had been drinking and Fonte stated that he had not. Patek performed the horizontal gaze nystagmus test on Fonte, and based on the results of this test, Patek concluded that Fonte was "under the influence of intoxicants." Fonte was given a breathalyzer test that registered an alcohol content of .06% at approximately 9:00 p.m.

¶ 5. Patek asked Fonte if there was anything Fonte needed to tell him. Fonte told Patek that when the swimmers jumped into the water he believed he had put the boat into neutral. Fonte then stated that he stood up from the controls and walked away. Patek placed Fonte under arrest and Fonte submitted to a blood draw at approximately 10:42 p.m. Analysis of his blood showed his blood alcohol content was then .052%.

¶ 6. Fonte was charged with homicide by the operation of a vehicle while under the influence of an intoxicant and with a prohibited alcohol concentration (PAG) contrary to Wis. Stat. § 940.09(l)(a) and (b). Paladino's body was recovered approximately five months after the accident and the parties stipulated that the boat propeller caused her death.

¶ 7. Fonte moved to change venue due to extensive pretrial publicity that he argued would prejudice the jury if selected in Walworth County. The court denied the motion for a change of venue, and stated that a fair trial could be achieved through careful screening of the jury.

¶ 8. The trial began March 11, 2002 and resulted in Fonte's conviction. The circuit court imposed a 25-year bifurcated sentence, consisting of seven years of confinement and 18 years of extended supervision. Fonte moved for post-conviction relief, alleging several errors at trial. The court denied the motion. On appeal, the court of appeals reversed Fonte's conviction based on its conclusion that the jury instruction regarding chemical tests for intoxication was misleading, and remanded to the circuit court for a new trial. The State appealed the reversal, and both sides briefed the remaining issues that the court of appeals did not decide.

II. DISCUSSION

A. Standard of Review

¶ 9. Fonte raises five issues, each of which has its own standard of review. Regarding the jury instruction issue, a circuit court has broad discretion in deciding whether to give a particular jury instruction. A court must exercise its discretion to "fully and fairly inform the jury of the rules of law applicable to the case and to assist the jury in making a reasonable analysis of the evidence." State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). However, we independently review whether a jury instruction is an accurate statement of the law applicable to the facts of a given case. State v. Groth, 2002 WI App 299, ¶ 8, 258 Wis. 2d 889, 655 N.W.2d 163.

¶ 10. In reviewing the sufficiency of the evidence to support a conviction, we do not overturn a jury's verdict "unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt." See State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).

¶ 11. The standard of review for ineffective assistance of counsel's components of deficient performance and prejudice present mixed questions of law and fact. State v. Johnson, 153 Wis. 2d 121, 127, 449 N.W.2d 845 (1990) (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)). A circuit court's findings of historic fact, "the underlying findings of what happened," will not be overturned unless clearly erroneous. State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985). Questions of whether counsel's performance was deficient and prejudicial are questions of law we review de novo. Id.

¶ 12. "We review [a circuit] court's denial of [a] change of venue motion under the erroneous exercise of discretion standard." State v. Albrecht, 184 Wis. 2d 287, 306, 516 N.W.2d 776 (Ct. App. 1994). However, we independently evaluate the circumstances " 'to determine whether there was a reasonable likelihood of community prejudice prior to, and at the time of, trial and whether the procedures for drawing the jury evidenced any prejudice on the part of the prospective or empaneled jurors.'" Id. (quoting State v. Messelt, 178 Wis. 2d 320, 327-28, 504 N.W.2d 362 (Ct. App. 1993)).

¶ 13. And finally, the constitutionality of Wis. Stat. § 940.09 is a question of law that we review de novo. See Maurin v. Hall, 2004 WI 100, ¶ 93, 274 Wis. 2d 28, 682 N.W.2d 866.

B. Jury Instruction

¶ 14. The State argues that the jury instruction properly explained the law regarding chemical tests for intoxication under Wis. Stat. § 885.235. We agree and therefore conclude that the instruction did not deprive Fonte of his right to due process of law.

¶ 15. "The validity of [a] jury's verdict [is affected by] the correctness of the jury instructions." State v. Dodson, 219 Wis. 2d 65, 87, 580 N.W.2d 181 (1998). "A challenge to [a conviction based on] an allegedly erroneous jury instruction warrants reversal and a new trial only if the error [is] prejudicial." Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992). "An error is prejudicial if it probably and not merely possibly misled the jury." Id. at 850. We will not reverse a conviction if the overall meaning communicated by the jury instructions was a correct statement of the law. See State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982).

¶ 16. At trial, the State submitted a proposed instruction that allowed the jury to find that Fonte had a PAC of 0.1 or higher at the time of his operation of the boat as prima facie evidence that he was under the influence of an intoxicant at that time. Fonte objected, arguing that the proposed instruction should not be given because his blood draw was taken more than three hours after the alleged operation. The court concluded that Wis. Stat. § 885.235(3) allows a jury to find that a PAC of 0.1 or higher is prima facie evidence of the defendant being under the influence when expert testimony establishes that the results of the delayed blood draw and the test have the effect of showing the defendant's blood alcohol level would have been 0.1 or higher at the time of the operation of the motor vehicle. Accordingly, because it found that the necessary nexus of expert opinion evidence was presented, it gave the following instruction:

Evidence has been received that a sample of the defendant's breath and blood were taken — was taken. An analysis of the samples has also been received. If you are satisfied beyond a reasonable doubt that there was .10% or more by weight of alcohol in the defendant's blood, or .10 grams or more of alcohol in 210 liters of the defendant's breath at the time of operation, you may find from that fact alone that the defendant was under the influence of an intoxicant at the time of the alleged operating, but you are not required to do so.

¶ 17. Fonte argues that the jury instruction is not appropriate in Wis. Stat. § 885.235(3) cases because those tests do not come within the requirements of § 885.235(lg). Subsections 885.235(lg) and (3) do differ in that under subsection (lg), chemical test analysis is admissible without requiring expert testimony, while under subsection (3), chemical test analysis is admissible "only if expert testimony establishes its probative value." Also, under § 885.235(lg)(c), analysis showing that a person's PAC was 0.1 or higher is prima facie evidence that he or she was under the influence of an intoxicant or had an alcohol concentration of 0.1 or higher. Under subsection (3), the alcohol concentration analysis "may he given prima facie effect only if the effect is established by expert testimony."

¶ 18. At trial, the State's expert, Casey Collins, testified in regard to the effect that the delayed blood draw and test results had upon Fonte's alcohol concentration at the time of the alleged operation, as follows:

Q: Mr. Collins, the last substance on the report is an alcohol — ethanol level, and what was that ethanol level?
A: 0.052 grams per hundred milliliters, or grams percent.
Q: And was that in his blood?
A: Yes, that was the whole blood sample.
Q: If you were to assume that this incident happened at approximately 3:55 in the afternoon, and that the blood sample was taken at 10:42 in the evening, is it possible for you to state to a reasonable degree of professional certainty what Mr. [Fonte's] blood alcohol level was at 3:45, assuming no consumption of alcohol after 3:45?
A: I would — I could make an estimate, and I would give you a range with that estimate. ...
Q: And how would you go about doing that calculation?
A: I would use the average elimination rate of a male human, multiply that elimination rate times the number of hours between the blood draw and the incident, and add that on to the blood alcohol level that we measured at 10:42.
Q: And is it possible for you to do that calculation now?
A: Yeah, sure. .. .
Now, there is a — there are ranges of elimination rates, so we must try to — we must compensate for that. So the low end of the range would be an elimination rate of .010, so that would ... [result in a concentration of] 0.122 as the low end of the range.
All right, now the higher elimination rate... -would . .. [result in a concentration of] 0.227, so we have a range of .1 to .22, with the average or the middle ground being [a concentration of] .157
Q: And can you state to a reasonable degree of professional certitude — or certainty, rather, using the breath test result in this case, what his alcohol would have been as it relates to the legal standards of .10 at 3:45 in the afternoon, assuming no consumption of alcohol after 3:45?
A: I would stick with my blood back extrapolation. I would just use that breath to see that he was in the elimination phase. I wouldn't — um, I, I mean I can do that, mathematically. So we have .074 at what time? This is at 9:02, right?
Q: Yes.
A: And the incident — so that's five, five hours and 15 minutes since the accident? Somebody help me here.
Q: Yes.
A: Okay, so .015 times 5.25, plus .074. I come up with a .152.

We conclude that this testimony is sufficient to satisfy Wis. Stat. § 885.235(3) because the expert testified to a reasonable degree of certainty what Fonte's blood alcohol level was at the time of the accident. Therefore, the circuit court did not err in giving the objected-to instruction.

C. Sufficiency of the Evidence

¶ 19. Fonte also argues that there was insufficient evidence at trial to prove beyond a reasonable doubt that he was the operator of the boat at the time of the accident. In evaluating the evidence, we give all reasonable inferences to it that will support the verdict. See State v. DeLain, 2005 WI 52, ¶ 11, 280 Wis. 2d 51, 695 N.W.2d 484.

¶ 20. Both Fonte and the State point to the same evidence, but come to different conclusions. Three of the four people on the boat (not including Fonte) who testified stated that they did not see who was operating the boat at the time of the accident. The fourth, Chad Mattingly, at first testified that he did not see who was driving, but was impeached with evidence of a prior statement he gave to police. He testified as follows:

Q. On the night of July the 16th, do you recall. .. indicating to the officer who was operating the boat at the time of the accident?
A. After some time, um, yes, I did. Um, it was — he kind of, I mean, helped me through my statement. I was kind of having a tough time getting some words out, and he was helping me along and kind of like, you know, feeding me some stuff and trying to help me get, you know, my words out, and I — we both kind of like sort of came to the conclusion that it had been Pete, and I kind of just went along with it, and I should have been a hundred percent sure; and I didn't know it was going to escalate like this.
Q. Well, you understand we're only interested in what you observed and — and the truth?
A. Right.
Q. Okay. Now did you — do you know who you told - the officer was driving the boat at the time of the accident?
A. He or — If I remember correctly, I think he might of said, well — then it was something like, well, it might have been Rabbit? And then I was like, I don't know. And then, um, I can't really recall what he said next, and then I guess I agreed with him....

The other evidence implicating Fonte as the operator was the testimony of Officer Patek, who interviewed Fonte at the police station the night of the accident. Patek testified that he asked Fonte "if there was anything he needed to tell [him]," and Fonte became "emotionally upset" and "started to cry." Fonte then stated "I thought the boat was out of gear. Oh, my God, I thought the boat was out of gear." Patek further testified as follows:

Q. And what next did [Fonte] say to you?
A. Um, he stated that they were going down the lake, um, that some subjects jumped off the back of the boat to go swimming. He stated that he pulled back on the controls.
Q. Did he indicate then what direction the boat began to move at that point in time?
A. I believe he said the boat was still going forward at that time.
Q. Did you ask him what happened next?
A. Yes.
Q. What did he say?
A. Um, that once the boat was back where he thought it was in neutral, he had gotten up from the controls and walked away.
Q. And did you ask him then what happened?
A. Yes.
Q. What was his response?
A. The boat at that time, um, continued in a sharp or tight turn and came back through the swimmers that were in the water.

Fonte argues that this evidence is not sufficient to prove beyond a reasonable doubt that Fonte was the operator of the boat. He argues the evidence shows only that Fonte had been driving the boat at some time prior to the accident, but that the jury had no way of knowing whether someone else had touched the controls before the accident or if it was Fonte's actions that caused the accident.

¶ 21. Reviewing the evidence in the light most favorable to the verdict, we conclude the jury could have found beyond a reasonable doubt that Fonte was the operator. Fonte's statements to Officer Patek could be understood as an admission that his operation of the boat was responsible for the accident. Patek's testimony that Fonte began to get emotional and cry as he stated, "I thought the boat was out of gear. Oh, my God, I thought the boat was out of gear," could lead a reasonable jury to find that Fonte believed he was operating the boat at the time of the accident and that it was his failure to put the boat in neutral that caused the accident. Additionally, Mattingly's grudging admission that he had agreed that Fonte was operating the boat corroborates this inference. Therefore, we conclude that the jury had sufficient evidence before it to find beyond a reasonable doubt that Fonte was operating the boat at the time of the accident.

D. Ineffective Assistance of Counsel

¶ 22. Fonte next argues that he was denied his constitutional right to the effective assistance of counsel when his trial counsel failed to object to evidence revealing Fonte's alias and failed to object to evidence relating to his lifestyle.

¶ 23. Strickland sets out the test for determining whether effective assistance of counsel was denied:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction. .. has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687. We have adopted the Strickland test. See Johnson, 153 Wis. 2d at 127. We have also explained, "Review of counsel's performance gives great deference to the attorney and every effort is made to avoid determinations of ineffectiveness based on hindsight." Id. "Rather, the case is reviewed from counsel's perspective at the time of trial, and the burden is placed on the defendant to overcome a strong presumption that counsel acted reasonably within professional norms." Id. (citing Strickland, 466 U.S. at 687). In addition to deficient performance, a defendant must prove that the defense was prejudiced, so that the defendant was denied a fair trial with a reliable result. Id. (citing Strickland, 466 U.S. at 687).

1. Use of an alias

¶ 24. Fonte claims his counsel's performance was deficient because she failed to object to repeated references to Fonte's use of the alias, "Anthony Michaels," which Fonte employed upon his arrest and at his first court appearance. The use of this alias led to an obstruction charge, to which Fonte pled guilty on the first day of trial. Fonte points us to numerous places in the record where the prosecutor, in the course of examining Fonte's friends, referred to Fonte as Michaels and asked them if they knew Fonte's real name before the accident. They responded that they did not, but rather, knew him as Anthony Michaels or "Rabbit." Law enforcement witnesses also testified that Fonte identified himself as Michaels on the day of the accident.

¶ 25. Fonte argues that "[p]rudent defense counsel would have objected to the state's use of Fonte's alias," that the use of an alias was irrelevant to the charges, and that it was prejudicial because "[c]rimi-nals, not innocent people, use aliases. People who have an alias are hiding something." The State argues that Fonte was known to many of the witnesses as Michaels, and calling him Michaels at trial was the natural result of communicating with witnesses who knew Fonte as Michaels. In addition, at the post-conviction motion hearing regarding ineffective assistance, Fonte's trial counsel stated that she was concerned that the use of the alias might confuse or prejudice the jury, but "believed that it was a better decision to have the State bring it out and us explain later that this was a name who all of his friends knew him as." She also said that she and Fonte had agreed to proceed this way because it would have been difficult to examine witnesses who knew Fonte as Michaels without using the name they knew.

¶ 26. In denying the post-conviction motion, the circuit court stated "it would have been a tactical nightmare ... to try to avoid the use of the [alias]" and that efforts to avoid all mention of the name by counsel and in exhibits would have been confusing to the jury to the point of possibly being a ground for post-conviction relief had they proceeded that way.

¶ 27. We are not persuaded by Fonte's arguments, but rather agree with the circuit court. Trial counsel's explanation of her reasons for permitting the use of the alias, which was reached after consultation with Fonte, is reasonable. Given that Fonte was known by different names to different witnesses, having the alias known avoided confusion for the jury. We also note that the nature of this crime, which arose from an accident rather than a premeditated desire to injure someone, makes the argument that "only criminals use aliases" less persuasive, because intent was not an element of this crime.

2. Evidence of lifestyle

¶ 28. The testimony the State presented of Fonte's lifestyle forms an additional basis for Fonte's claim of ineffective assistance of counsel. Fonte argues that testimony painted an unflattering view of him by showing that: (1) he and his friends were in town to hear a concert by Phil Lesh, bass player for the Grateful Dead, a band whose followers are widely known as "Dead Heads;" (2) he had attended more than fifty concerts over the previous one to two years; (3) his group of friends knew each other only by first names or nicknames; and (4) the group had all slept together in one hotel room the night before the accident. Fonte argues this evidence paints him as a person who either does not have a job or has little responsibility and is more likely to abuse drugs or alcohol.

¶ 29. We conclude that Fonte's arguments regarding testimony about his lifestyle are unpersuasive. We agree with the circuit court and Fonte's trial counsel that testimony concerning the group of friends frequently attending concerts is not prejudicial to Fonte. We agree that the jury, after hearing this evidence, would not necessarily interpret it as Fonte argues. There is little reason to think Fonte was unemployed based on the fact that he traveled to fifty concerts. While we agree that drug abuse and alcohol abuse have been reported as having occurred at rock concerts, Fonte fails to show how this point, given other evidence raised against him in the circuit court, is sufficient to undermine our confidence that Fonte received a fair trial with a reliable verdict. Accordingly, we reject Fonte's argument that he was denied effective assistance of counsel.

E. Change of Venue

¶ 30. Fonte argues the circuit court erred in denying a change of venue. He contends he submitted enough evidence to show the pretrial publicity would prevent a fair trial in Walworth County.

¶ 31. In making our evaluation of the publicity, we consider the following factors:

(1) the inflammatory nature of the publicity; (2) the timing and specificity of the publicity; (3) the degree of care exercised, and the amount of difficulty encountered, in selecting the jury; (4) the extent to which the jurors were familiar with the publicity; (5) the defendant's utilization of peremptory and for cause challenges of jurors; (6) the State's participation in the adverse publicity; (7) the severity of the offense charged; and (8) the nature of the verdict returned.

Albrecht, 184 Wis. 2d at 306. Fonte supplied the circuit court with 44 newspaper articles from area newspapers dated July 17, 2001 to January 10, 2002, focusing on the first, second and fourth Albrecht factors. He argues that the voir dire process did not cure the jury of the prejudicial effect of that publicity.

¶ 32. With regard to the first factor, the inflammatory nature of the publicity, we note that objective, factual, non-editorial reporting is not prejudicial. Briggs v. State, 76 Wis. 2d 313, 327, 251 N.W.2d 12 (1977).

A court looking to the inflammatory nature of the publicity should be primarily concerned with the manner in which the information was presented. Unedito-rialized news of an informational nature may inform possible members of a jury, but this does not necessarily make the information objectionable. News reports become objectionable when they editorialize, amount to "rabble rousing" or attempt to influence public opinion against a defendant.

Id. At the motion hearing, Judge Kennedy stated:

I don't see the publicity as being unduly prejudicial... nor do I find it even inflammatory. It's mostly factual about what happened. It is not... written with the intent to pillory and convict Mr. Fonte before he's ever . . . before trial. It factually reports what's happening in the courts, what evidence has been produced at the preliminary hearings and has come out in public documents that the press has access to and which, by the way, any member of the public can come in and read too.

¶ 33. We agree with the circuit court's characterization of the publicity. The articles contained factual, non-editorial reporting about the accident and the criminal proceedings against Fonte. Some of the articles focused not on Fonte, but on the search for Paladino's body, which took several months to recover. To the extent the coverage contained possibly inflammatory elements, such as a headline stating he had a "history of run-ins with authorities," a statement calling his record "a laundry list of criminal activity" or a story containing statements about Fonte's operation of the boat, that coverage was offset by other factors we explain below, ¶¶ 34, 36-37, such as the long time period between the coverage and the trial and the circuit court's effective use of voir dire. In any case, we cannot characterize the publicity as "rabble rousing" or an attempt to influence public opinion against Fonte.

¶ 34. The second factor, the timing and specificity of the publicity, works against the jury pool being prejudiced. More than half of the articles were published in July and August immediately after the accident. Those published between September and January generally focused on either the search for Paladino's body or summaries of the proceedings against Fonte. The articles Fonte believes are inflammatory due to statements about his prior record or disputed events being asserted as fact were published on July 25 and 26, more than seven months before the trial. The gap between these articles and the trial is such that "the memories and passions of readers had time to fade." Messelt, 178 Wis. 2d at 330.

¶ 35. Fonte also cites the fourth Albrecht factor, the extent to which the jurors were familiar with the publicity. He argues that the court's findings that the circulation of the newspapers was about 20,000, while there were approximately 79,000 potential jurors in the area, show that a "significant percentage" of potential jurors were influenced by the publicity. We do not rely on specific percentages to determine whether there was prejudice; however, a significant number of potential jurors could have been exposed to the publicity. This extensiveness factor does not weigh heavily in our determination because of the circuit court's use of voir dire, which we describe below.

¶ 36. Finally, Fonte argues that voir dire, which is mentioned in the third and fifth Albrecht factors, did not successfully solve the problems raised by the publicity. He argues that the effects of the publicity were not eliminated because five of the twelve jurors said either that they had read about the case or thought they had read something about the case. Fonte also states that four of his five peremptory challenges were used on potential jurors who had read about the case.

¶ 37. After examining the transcript of voir dire, we are satisfied that it ensured an impartial jury. The circuit court individually questioned potential jurors about whether they had seen coverage of the case and whether it tainted their ability to be impartial. The court excused eleven potential jurors who said they had formed an opinion about the case, ten of whom had been exposed to pretrial publicity. The court stated it must "err on the side of caution" and "be on the safe side" in excusing potential jurors who were uncertain whether they could be impartial. In addition, as we mentioned in our discussion on the inflammatory nature of the publicity, supra ¶¶ 32-33, the court dismissed four jurors who had read articles published shortly before the trial mentioning syringes found in the room Fonte originally occupied because the court decided such evidence would be prejudicial. Therefore, we conclude that voir dire was properly employed by the circuit court to produce an impartial jury.

F. Constitutionality of Wis. Stat. § 940.09

¶ 38. Finally, Fonte challenges the constitutionality of Wis. Stat. § 940.09, "Homicide by intoxicated use of vehicle or firearm," arguing that the statute unconstitutionally relieves the State of the burden of proving beyond a reasonable doubt a causal connection between a defendant's intoxication and the death by requiring the State to prove only that operation by an intoxicated driver caused the death. He asks that we overrule our decision in State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985), where we rejected this precise argument. We decline to do so. While the doctrine of stare decisis "contemplates that under limited circumstances a court may overrule outdated or erroneous holdings," Cook v. Cook, 208 Wis. 2d 166, 186, 560 N.W.2d 246 (1997), our reasoning in Caibaiosai is sound. In Caibaiosai we stated:

The legislature has determined that combining the operation of a motor vehicle with being in an intoxicated state is conduct which is malum prohibitum and is pervasively antisocial. Since the conduct is considered inherently evil, it conceptually cannot be divided into portions which are bad and portions which are not bad. Section 346.63, Stats., entitled "Operating under the influence of intoxicants" is violated by a person who, one, operates a motor vehicle, and two, is at the time under the influence of an intoxicant. The commission of the offense does not require any erratic or negligent driving. Because driving under the influence of an intoxicant is malum prohibitum it is impossible to separate the intoxication from the driving or the driving from the intoxication. The result is the potentially lethal and illegal combination of driving while intoxicated.
Section 940.09, Stats., requires that the prosecution prove and the jury find beyond a reasonable doubt a causal connection between the defendant's unlawful conduct, operation of a motor vehicle while intoxicated, and the victim's death. The statute does not include as an element of the crime a direct causal connection between the fact of defendant's intoxication, conceptualized as an isolated act, and the victim's death. Under this statute there is an inherently dangerous activity in which it is reasonably foreseeable that driving while intoxicated may result in the death of an individual. The legislature has determined this activity so inherently dangerous that proof of it need not require causal connection between the defendant's intoxication and the death.

Caibaiosai, 122 Wis. 2d at 593-94. We affirm Caibaiosai and reject Fonte's argument that § 940.09 is unconsti-tutionál.

III. CONCLUSION

¶ 39. We conclude the following: (1) the jury-instruction that was given for chemical tests of intoxication did not deny Fonte of a fair trial; (2) there was sufficient evidence in the record that Fonte was operating the boat at the time of the accident to support the conviction; (3) Fonte was not denied effective assistance of counsel; (4) the decision to deny Fonte's motion for change for venue due to pretrial publicity was appropriate; and (5) Wis. Stat. § 940.09 is constitutional. Because we have ruled against Fonte on each issue, we reverse the court of appeals and remand the case to the circuit court with directions to reinstate Fonte's conviction.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded with directions.

¶ 40.

N. PATRICK CROOKS, J., did not participate.

       All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       The court of appeals ruled on the jury instruction issue and did not consider the other issues. Both parties have briefed all the issues, and rather than remand to the court of appeals for consideration of the issues it did not discuss, we address them. See State v. Johnson, 153 Wis. 2d 121, 124-26, 449 N.W.2d 845 (1990).

       The information added a count of obstruction, to which Fonte pled guilty, and counts of injury to another person by operation of a motorboat while under the influence and with a prohibited blood alcohol content under Wis. Stat. §§ 30.681(2)(a) and (b) and 30.80(6)(a) and (b).

       At the trial held in Walworth County Circuit Court, Judge Robert J. Kennedy presiding.

       Wisconsin Stat. § 885.235 states in relevant part:
      Chemical tests for intoxication.
      (3) If the sample of breath, blood or urine was not taken within 3 hours after the event to be proved, evidence of the amount of alcohol in the person's blood or breath as shown by the chemical analysis is admissible only if expert testimony establishes its probative value and may be given prima facie effect only if the effect is established by expert testimony.

       Casey Collins testified that he is employed by the State of Wisconsin as the technical unit leader of the toxicology section of the Madison Crime Laboratory. Collins has a degree in forensic toxicology and has tested tens of thousands of samples for the presence of alcohol.

       There was testimony that Fonte was also known by his nickname, "Rabbit."

       Fonte also cites to a comment made by the prosecution that Fonte created a criminal record as he followed bands around the country. This comment was made at Fonte's initial appearance regarding bail, not in front of the jury. Therefore, it is not relevant to our discussion.

       The jury heard unrefuted testimony that Fonte had a blood alcohol level at the time of the accident of at least 0.122.

       Shortly before the trial, newspaper articles were published stating that syringes, one of which had Fonte's DNA on it, were found in the hotel room Fonte had occupied. The trial court ruled that this evidence was irrelevant and prejudicial and thus ruled it inadmissible at trial. This is the kind of evidence that could be considered inflammatory, but as we explain in our discussion of the voir dire process below, ¶ 37, the court dismissed all potential jurors who said they had read about the case in the time immediately preceding the trial, and therefore might have seen these articles.

       The court of appeals stated that Fonte abandoned this issue in his reply brief. State v. Fonte, No. 2003AP2097-CR, unpublished slip op. at 2 n.1 (Wis. Ct. App. Aug. 4, 2004). In his reply brief below, Fonte stated "[b]oth parties agree that this court is bound by State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985), which upheld the constitutionality of Wis. Stat. § 940.09. Only the supreme court has the authority to overrule Caibaiosai, and thus, no reply to the state's brief is warranted here." On appeal here, both parties agree that Fonte abandoned his argument only with respect to the court of appeals and properly raised the issue here.

       Wisconsin Stat. § 940.09 states in relevant part:
      Homicide by intoxicated use of vehicle or firearm. (1) Any person who does any of the following is guilty of a Class B felony:
      (a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
      (b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01(46m).

      Motion for reconsideration denied 10-21-05. Order modifies ¶ 29, n.9. See PDC 2005 WI 145.