Prosecutors: Man said he 'fell asleep' before crashing into tree, killing son after celebrating his birthday

Nicholas Dischler

PEWAUKEE -- A Pewaukee father is facing charges, accused in connection with the death of his 3-year-old son, which happened Sunday, July 15 in Pewaukee -- where the vehicle he was driving struck a tree. The child died at the hospital. Prosecutors say the father told investigators he "fell asleep" after celebrating his son's third birthday at a campground over the weekend.

Nicholas Dischler, 25, of Pewaukee, faces one count of homicide by intoxicated use of a vehicle, one count of OWI, causing injury (first offense) and one count of OWI with a minor child in the vehicle, first offense. He appeared in court for the first time on Wednesday, July 18 -- and a request to attend his son's funeral was denied -- leading to cries from the gallery.

The crash happened shortly before 6 a.m. Sunday at Prospect and Rocky Point Road in Pewaukee -- where prosecutors say the vehicle Dischler was driving struck the tree. A 24-year-old woman was in the front passenger seat at the time of the crash. Their 3-year-old son was found not breathing and without a pulse in the back seat of the vehicle. He was taken to Children's Hospital -- where he was pronounced dead.

Prospect and Rocky Point Road in Pewaukee

Prospect and Rocky Point Road in Pewaukee

A criminal complaint says a car seat was found on the left side of the rear passenger seat -- not secured to the vehicle. A first responder said he saw the boy on the back seat of the vehicle with "only the lap portion of a regular seat belt on him, with the strap behind him -- not in a car seat."

Because investigators say the child was not secured in the vehicle, dispatch audio shows there was some confusion at the scene.

Prospect and Rocky Point Road in Pewaukee

Dispatch audio: "One male is outside the vehicle bleeding. The female in the street can't move. A child is also inside the vehicle at this point."

Dispatch audio: "There's a child sleeping in the back seat."

Moments later, there were requests for a supervisor.

Dispatch audio: "I need a supervisor on scene. The child is not doing well."

Nicholas Dischler

Prosecutors say Dischler said he "fell asleep and woke up after the crash."

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He said he and the woman and their two children -- the 3-year-old and a 5-year-old -- had been staying at the Ottawa Campgrounds since Friday, July 13, and he said he "drank 10-12 beers sometime before sunset on Saturday and 1 a.m. or 2 a.m. on Sunday." He said he slept from 2 a.m. until 4 a.m. and they left the campsite around 6 a.m. Sunday. He said the child was placed in a car seat and buckled in before they left the campsite. He told investigators he had a handgun in the center console of the vehicle -- "secured for safekeeping."

Investigators noted an odor of intoxicants coming from Dischler. He was arrested for OWI. He was taken to the hospital from the scene for a medical evaluation -- and a blood draw.

Nicholas Dischler

The complaint says Dischler indicated "he was going 25 miles-per-hour prior to falling asleep." He said after he hit the tree, he heard his son crying. He said his son was in the car seat and strapped in, and he "took his son out of the car seat and placed him on the back seat -- and thought he went to sleep."

The complaint notes that Dischler told investigators the family arrived at the campground on Friday evening, July 13 and at some point on Saturday, July 14, Dischler's mother came to the campground and eventually left with the 5-year-old child. He said the 3-year-old boy was still sleeping when he and the woman put him in the car when they decided to leave on Sunday morning. He said he believed the woman put the boy in the back seat and then she fell asleep in the car while he packed up their belongings. He said he "fell asleep somewhere in the area of Prospect Road, and hit a tree" as they drove home. He said he and his mother called 911 after the crash. When he learned his son had died, the complaint says Dischler "did break down."

Investigators spoke with the woman, who said they had visited the campground to celebrate the 3-year-old boy's birthday. She indicated on Saturday night, she "didn't think (Dischler) had much to drink," and said he "drank a lot more down by the beach earlier." She said by Sunday morning, "they were being eaten alive by mosquitoes and were tired from not getting any sleep all weekend," and they "just wanted to go home." She noted that Dischler didn't get much sleep over the weekend. Others who were with the family over the weekend told investigators Dischler didn't get much sleep and was "very tired."

Nicholas Dischler

She said when she put the 3-year-old boy in the car, she "laid him down on the back seat behind her," and the complaint says she admitted he wasn't in a car seat. She said "she was going to put him in the car seat before they started driving home, but fell asleep." When investigators spoke with her again, she indicated she "had seat belted (the boy) not only around his lap, but the seat belt was also crossing his chest diagonally." She said she then fell asleep as Dischler was packing up the car.

The complaint notes that she was injured in the crash, and had to be transferred to the ICU due to a laceration to her spleen.

As Dischler made his initial appearance in court on Wednesday, a preliminary hearing was scheduled for July 26. Cash bond was set at $50,000.

Pewaukee Mayor Steve Bierce issued this statement Wednesday: