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OWI driver owes restitution even if “victim” ran into him

State v. David M. Larson, 2017AP1610-CR, 12/27/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

David Larson was driving drunk when another driver, who was cited for failing to yield the right of way, collided with him in a roundabout. Larson drove away while police were investigating. After a contested hearing, the court awarded the other driver restitution for injuries to himself and damage to his car.

Larson contends on appeal that the crimes of which he was convicted–OWI and hit and run–did not cause the other driver’s damages, since the other driver was at fault for the accident. It’s an interesting metaphysical sort of question. If Larson had been sober in the same place at the same time and the other driver ran into him, the damages would have been the same–so how can we say that Larson’s criminal conduct “caused” the damages? The court of appeals isn’t interested in such questions, though:

In State v. Rodriguez, 205 Wis. 2d 620, 623, 556 N.W.2d 140 (Ct. App. 1996), for example, Rodriguez was convicted after a no contest plea to hit-and-run in an accident causing death. He was ordered to pay restitution, which he contested, arguing that he was not liable for restitution because his only “criminal act”—fleeing—was not the “cause of the death of the victim.” Id. at 624. This court disagreed, reasoning that “[u]nder the restitution statute, the sentencing court takes a defendant’s entire course of conduct into consideration. The restitution statute does not empower the court to break down the defendant’s conduct into its constituent parts and ascertain whether one or more parts were a cause of the victim’s damages.” Id. at 627. This court concluded that in pleading no contest, Rodriguez admitted all of the elements of the crime. Id. at 628. The prohibited conduct consisted of operating a vehicle which was involved in an accident and then leaving the scene of the accident before performing specific statutory duties. Although one element on its own may not constitute a crime, when all of these elements are proven or admitted, then a crime has been committed and restitution may be ordered. Id. at 629.

R.A.C. was a victim of Larson’s crimes considered at sentencing under WIS. STAT. § 973.20(1r). Larson was initially charged with OWI, fourth offense, and hit-and-run. Pursuant to a plea agreement, the hit-and-run was a read-in charge. Larson drove his vehicle while intoxicated; under the influence of an intoxicant means that “the person has consumed a sufficient amount of alcohol to cause the person to be less able to exercise clear judgment and steady hand necessary to handle and control a motor vehicle.” WIS JI—CRIMINAL 2669. An accident occurred, which resulted in injuries to R.A.C. and damages to his vehicle. Larson fled the accident scene and was charged with a hit-and-run—a crime clearly connected with the damage as the crime requires that “[t]he defendant operated a vehicle involved in an accident on a highway” and “[t]he accident resulted in (injury to any person) (death of any person) (damage to a vehicle driven or attended by any person).” See WIS JI—CRIMINAL 2670. We are not permitted to “break down the defendant’s conduct into its constituent parts” and we must instead consider “all facts and reasonable inferences concerning the defendant’s activity related to the ‘crime’ for which the defendant was convicted.” See Rodriguez, 205 Wis. 2d at 627; Madlock, 230 Wis. 2d at 333. Accordingly, the circuit court properly ordered Larson to pay restitution to R.A.C.


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