(dissenting). Driving while under the influence of an intoxicant is deplorable, antisocial, dangerous behavior which the legislature can — and should — penalize severely.
Providing for a maximum five years’ imprisonment and a $10,000 fine, sec. 940.09(1) (a), Stats. 1981-82, punishes any person who causes the death of another by the operation or handling of a vehicle. while under the influence of an intoxicant.1
*602While an initial reading of the statute suggests that sec. 940.09(1) (h) is a valid legislative response to the problem of drunk driving, careful consideration of the majority’s interpretation of the statute — an interpretation which apparently is in harmony with legislative intent — demonstrates that the statute violates basic concepts of due process and is unconstitutional.
Sec. 940.09 dispenses with the state’s burden of proving beyond a reasonable doubt a causal connection between the wrongful conduct (here, the intoxication or faulty operation of a vehicle while under the influence of an intoxicant) and the particular result of the wrongful conduct (here, death). Under sec. 940.09 the state need prove only that the operation of the vehicle caused the death. See Wis. J.I. — Cr. Introductory Comment to Instructions 2660-2665, p. 15 (Rel. No. 6, 6/82).2 Thus sec. 940.09(1) (a) provides that when a person operates *603a vehicle while intoxicated and a death results, the defendant is guilty of a felony, even if there is no causal connection between the intoxication and the death and even if the defendant’s actual operation of the vehicle is in no way faulty.
Accordingly, the jury in this case was instructed regarding causation as follows:
“The third element of this offense requires that the relation of cause and effect exists between the death of [the victim] and the defendant’s operation of a vehicle. Before such relation of cause and effect can be found to exist, it must appear that the defendant’s operation of his vehicle was a substantial factor in producing the death. That is, the defendant’s operation must have been a factor which had substantial effect in producing the death as a natural result.
“It is not required that the death was caused by any drinking of alcohol or by any negligent or improper operation of the vehicle. What is required is that the injury was caused by the defendant’s operation of the vehicle.” Wis. J.I. — Cr. No. 1885.
Because the state need prove only the three statutory elements of the crime beyond a reasonable doubt — (1) the driver was operating a vehicle; (2) the driver was operating the vehicle while under the influence of an intoxicant; and (3) the operation of the vehicle, but not necessarily the driver’s faulty operation of the vehicle or the driver’s intoxicated condition, “caused” the death— the following drivers can be convicted of homicide under sec. 940.09(1) (a) :
1. A driver under the influence of an intoxicant kills a child who darts into the path of the car (Vehicle A) from between parked cars.
2. A driver under the influence of an intoxicant stops the car (Vehicle A) at a red light. His passenger is killed when Car B rear-ends Vehicle A.
3. A driver under the influence of an intoxicant stops the car (Vehicle A) at a red light and proceeds through *604the intersection after the light turns green. His passenger is killed when Car B strikes Vehicle A.
4. A driver under the influence of an intoxicant loses control of the motorcycle (Vehicle A) when it skids on an oil slick. The passenger in Vehicle A is killed when she hits a tree.
In these four examples, “but for” the operation of Vehicle A, the victim would not have died. The operation of Vehicle A was a substantial factor causing the victim’s death. In short, in each of the four examples sec. 940.09(1) (a) would allow the state to prosecute and convict the driver of homicide by proving that the death was caused by the mere operation of the vehicle. True, the driver must be operating the vehicle while under the influence of an intoxicant, and operation in that condition is unlawful conduct. The fact is, however, that in each of the four examples set forth above, the driver was (except for driving while under the influence of an intoxicant) obeying the rules of the road, and no driver operating Vehicle A (intoxicated or sober) could have prevented the incident or the death. In each of the four examples, the unlawful conduct as such (operating while under the influence of an intoxicant) did not cause the death. Nevertheless because the state does not have to prove that the unlawful conduct caused the death, a conviction results.
The statute is not rendered constitutional by the provision that allows the driver to escape criminal liability by proving, if he or she can, that the death would have occurred even if the driver had not been intoxicated. In Patterson v. New York, 432 U.S. 197 (1977), the United States Supreme Court pointed out that although state legislatures may “reallocate burdens of proof by labeling as affirmative defenses at least some of the elements of the crimes now defined in their statutes . . . there are obviously constitutional limits beyond which the States may not go in this regard. ‘[I]t is *605not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.’ ” Id. at 210. (Citation omitted.) No United States Supreme Court case since Patterson has further defined the constitutional parameters of the legislature’s discretion to reallocate the burden of persuasion. See Moran v. Ohio, 53 L.W. 3318 (1984) (Brennan and Marshall, JJ. dissenting from denial of cert.)
The constitutionality of sec. 940.09(1) (a) should be tested without considering the defense authorized in sec. 940.09(2). Under Patterson the test seems to be that it is only if the state may completely delete from the statute the concept of causation between the wrongful conduct (intoxication or faulty operation of a vehicle while under the influence of an intoxicant) and the harm (death), that the burden of persuasion can be shifted to the defendant.3
*606Requiring the state to prove causation between the wrongful conduct and the harm is a basic principle of criminal jurisprudence.4 Because sec. 940.09(1) (a) does not require the state to prove this causal connection, the effect of sec. 940.09(2) is that the accused must prove himself or herself innocent. In our system of justice, the state must prove guilt; no statute can require the individual to prove innocence.
In my opinion this statute which punishes a driver for homicide without requiring the state to prove the causal connection between wrongful conduct (that is, the driver’s intoxication or the driver’s faulty operation of the vehicle while under the influence of an intoxicant) and the harm (death) is unconstitutional. Proof of this causal connection is so critical to culpability for homicide that if a conviction for homicide may be obtained without proof of this causality the statute violates basic notions of what is right and fair. As the four examples illustrate, the driver is blameless of homicide unless there is proof of a causal connection between the wrongful conduct and the harm; without this connection, the culpability necessary to justify a conviction for homicide is missing. From those examples it is clear that causal culpability, not the culpability associate with driving while intoxicated, is required to convict of homicide.
*607I conclude that in enacting sec. 940.09 the Wisconsin legislature has gone beyond its constitutional powers. The person who drives while intoxicated should be punished. The driver is blameworthy. A person convicted of operating a vehicle while intoxicated is punished under Wisconsin law with a civil forfeiture or a criminal penalty depending on whether it is a first offense. The drunk driver may be convicted of homicide if the state proves beyond a reasonable doubt that his intoxication or faulty driving while under the influence of an intoxicant caused the death. In summary, I conclude that this statute providing for imprisonment of up to 5 years without requiring the state to prove a causal connection between a defendant’s wrongful conduct (that is, intoxication or faulty operation of the vehicle while under the influence of an intoxicant) and the resulting harm (death) violates basic notions of fairness embodied in the due process clause and is unconstitutional.
In light of this analysis, I can not accept either the state’s or the majority’s defenses of this statute. I cannot accept the state’s argument that a direct causal connection between the intoxication and death (or between faulty operation and death) is not required because sec. 940.09 creates a version of the crime of misdemeanor-manslaughter. The state views the crime of misdemeanor-manslaughter as eliminating causation and as basing liability for a homicide on the fact that the killing occurs during the commission of some other act proscribed by the law.5
Although some courts have held that causation is not required in misdemeanor-manslaughter or felony-murder, several commentators conclude that relieving the state of the burden of proving causation between the proscribed *608conduct and the harm does not comport with generally accepted principles of criminal law. See, e.g., LaFave & Scott, Criminal Law, sec. 35, p. 264, sec. 79, pp. 596, 601-602 (1972); Wilner, Unintentional Homicide in the Commission of an Unlawful Act, 87 U. Pa. L. Rev. 811 (1939). Wisconsin’s felony-murder statute, sec. 940.02 (2), comports with the commentators’ view; it requires the state to prove that the death occurred “as a natural and probable consequence of the commission of or attempt to commit a felony.” See Hoffman v. State, 88 Wis. 166, 179, 59 N.W. 588 (1894); Brook v. State, 21 Wis. 2d 32, 41, 123 N.W.2d 535 (1963); and Boyer v. State, 91 Wis. 2d 647, 670, 284 N.W.2d 30 (1979).6 Wisconsin does not have a misdemeanor-manslaughter statute.
The majority attemps to invoke strict liability as a means of eliminating the need for causation. The concepts of negligence per se and strict criminal liability, which are discussed by the majority at page 595, relate, however, to the element of scienter, not causation. Scienter is not the determinative issue in this case. Even in strict liability crimes, causation must be proved if the statute punishes a harm.7
The majority opinion can also be read to imply that sec. 940.09(1) (a) does not eliminate the element of causation between the intoxication (or the faulty operation of a vehicle while under the influence of an intoxi*609cant) and the death, but rather implicitly incorporates the element of causation. The majority opinion seems to say that the statute rests on the premise that a direct causal connection inheres between intoxication and death. Pages 593, 594.8
This reasoning must fail. If sec. 940.09(1) (a) is viewed as incorporating, albeit silently, a mandatory rebuttable presumption that the intoxicated condition caused the death, the presumption would be an unconstitutional denial of due process because it shifts to the defendant the burden of persuading the fact finder as to an element of the crime. Sandstrom v. Montana, 442 U.S. 510 (1979); Muller v. State, 94 Wis. 2d 450, 475-78, 289 N.W.2d 570 (1980).
Drunk driving is reprehensible conduct. Anyone who operates a vehicle while under the influence of an intoxicant should be punished, whether or not there is injury to person or property. When the drunk driver causes injury, the punishment should be increased. The drunk driver should not, however, be punished for homicide unless the driver’s intoxication or faulty operation while under the influence of an intoxicant caused the death. Because sec. 940.09(1) (a) permits the state to punish a driver for homicide with 5 years’ imprisonment when *610death occurs by chance, I conclude the statute is unconstitutional. Accordingly I must dissent from the court’s opinion.
MOTION FOR RECONSIDERATION. Denied.
PER CURIAM.The issue raised by defendant-appellant in his motion for reconsideration was considered by the court to be meritless. The motion for reconsideration is denied.
Sec. 940.09(1) (a), Stats. 1981-82, provides as follows:
“Sec. 940.09(1) Any person who does either of the following under par. (a) or (b) is guilty of a Class D felony:
“(a) Causes the death of another by the operation or handling of a vehicle, firearm or airgun and while under the influence of *602an intoxicant or a controlled substance or a combination of an intoxicant and a controlled substance.”
“The [Jury Instruction] Committee was satisfied that the intent of the legislature was to remove any required causal connection between the death and the defendant’s negligence or the defendant’s being under the influence. Thus, the instruction tries to make the point that only simple operation must be causal, not operation under the influence, and not negligent operation.” Wis. J.I. — Cr. No. 1185, note 9 (Rel. No. 6, 6/82). See also Wis. J.I.— Cr. No. 2660-2665, Introductory Comment, p. 15 (Rel. No. 6, 6/82) (emphasis in original).
• Under the “substantial factor” test of causation, see jury instruction quoted infra, there may be more than one substantial causative factor in any given case. See Hart v. State, 75 Wis. 2d 371, 397, 249 N.W.2d 810 (1977). For a discussion of cause in fact and legal causation, see LaFave and Scott, Criminal Law sec. 35 (1972); Perkins, Criminal Law, pp. 685-696 (2d ed. 1969); Model Penal Code, Comments sec. 2.03, pp. 132-135 (Tentative Draft No. 4, 1955), sec. 2.03, p. 28-30 (Proposed Official Draft 1962).
The criminal code does not define “operate.” The jury instructions use the definition of “operate" in sec. 346.63(3) (b), Stats. 1981-82.
See Wis. J.I. — Cr. 2660-2665 Introductory Comment, p. 17 (Rel. No. 6, 6/82); Note, The Constitutionality of Affirmative Defenses after Patterson v. New York, 78 Colum. L. Rev. 655, 667 (1978).
The majority’s conceptualization of the affirmative defense is in itself perplexing. The majority opinion states that the affirmative defense under sec. 940.09(2) is not available to a defendant who shows that the death would have occurred without the intoxication because “if it were, the defendant could exonerate himself by claiming he was negligent and thereby avoid the consequences of having caused the death while operating a motor vehicle while intoxicated.” Page 600. I do not understand this statement because sec. 940.09(2) expressly states that “The actor has a defense if it appears by a preponderance of the evidence that the death would have occurred even if the actor had not been under the influence of an intoxicant or a controlled substance or a combination thereof or did not have a blood alcohol concentration described under sub. (1) (b).” (Emphasis supplied.) The majority cites no authority and offers no cogent explanation for its denial of the plain words of the statute. The majority fails to explain what type of circumstances would allow the affirmative defense.
In contrast to the majority opinion, the state’s brief apparently acknowledges that the affirmative defense is available when the *606defendant can produce evidence that the accident was caused by negligent operation of the vehicle that would have occurred even if the defendant was not under the influence of an intoxicant. State’s brief to the court of appeals, pp. 33-34.
See Hall, General Principles of Criminal Law, ch. 8 (1947); LaFave & Scott, Criminal Law sec. 25, p. 175, 177, sec. 35 (1972) ; Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689, 719 (1930).
Requiring the state to prove causation is a corollary of the principle that the state must prove every fact necessary to constitute the crime charged guilt beyond a reasonable doubt before it can imprison an individual. In re Winship, 397 U.S. 358 (1970). See, also, Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299 (1977).
I do not understand the discussion in the majority opinion characterizing the offense of operating a motor vehicle while under the influence of an intoxicant as malum prohibitum. Pages 593, 594.
The majority’s reliance on the Schulter case is misplaced. Pages 594, 595. The statute construed in that case required that the death be a consequence of the crime, that is, that the death be caused by the commission of the crime. Sec. 940.09(1) (a) requires that death be caused by the operation of the vehicle. Operating a vehicle is not in and of itself a crime.
See Model Penal Code sec. 2.03(4) (Proposed Official Draft 1962), providing that in strict liability crimes — that is liability without scienter — if a harm {e.g., pollution of a stream) is an element of the offense, then there is no liability unless the harm “is a probable .consequence of the actor’s conduct.”
The majority opinion seems to find a sufficient causal connection in the statute by speaking of the negligent act of driving while intoxicated as the conduct which causes the death instead of speaking of the operation of the vehicle as the conduct causing the death. The proffered rationale is that “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.” Pages 593, 594.
The majority opinion also asserts that the affirmative defense provided for in sec. 940.09 is available “for the situation where there is an intervening cause between the intoxicated operation of the automobile and the death of the individual.” Page 596. See also pp. 598-600. Referring to an “intervening cause” presupposes that the defendant’s intoxicated condition while driving was an antecedent cause.