Plainsman1963

By Michael King | 10-13-2004 | Post Crescent

Traffic crash killed son, 5, who was not wearing seat belt

OSHKOSH — Merica C. Kabke of Menasha wept softly Tuesday afternoon as a Winnebago County judge found her guilty of causing the Jan. 11 traffic crash in Neenah that killed her 5-year-old son.

Circuit Judge Scott Woldt accepted the no-contest plea of the 28-year-old former Neenah woman to a reduced charge of homicide by negligent operation of a motor vehicle, which was offered by prosecutors.

Kabke’s son, Vincent Erato, was not wearing a seat belt when his mother ran a stop sign and collided with a truck. He died two days later of a severe head injury at a Milwaukee hospital.

A presentence investigation was ordered and sentencing set for Dec. 16.

Kabke now faces up to 10 years in prison, a $25,000 fine and one-year revocation of her driver’s license.

She had faced a maximum of 25 years in prison, a $100,000 fine and a five-year revocation for causing a death while driving under the influence of illegal drugs.

A blood test she voluntarily submitted following the accident revealed she had marijuana in her system. That led the original charge of negligent homicide being upgraded to the new drugged-driving law passed last December.

Dist. Atty. Bill Lennon said he expects to recommend a prison sentence but wants to see the pre-sentence report before making a final determination.

“What really turned the tide was the Neenah police officer’s report that indicated the defendant wasn’t impaired as a result of her marijuana use (the night before),” Lennon said.

The Nov. 29 trial was expected to be among the first in Wisconsin under the law that makes it illegal to have any detectable amount of drugs in the bloodstream while driving.

Lennon said proof of impairment was not needed but prosecutors concluded that a 10-year prison exposure was enough potential punishment.

“We compromised, if you will, and decided that it was better to get a plea for an appropriate charge rather than take a chance on a charge that was maybe too harsh under the circumstances given what the officer observed,” Lennon said.

Some defense attorneys have questioned the constitutionality of the law.

“There’s always going to be argument about the propriety of the law,” Lennon said Monday. “It’s basically absolute sobriety.”

Michael King can be reached at 920- 729-6622, ext. 33, or by e-mail at mking@postcrescent.com