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Restitution — Victim as Party to the Crime

State v. Chad J. Knoll, 2000 WI App 135, 237 Wis.2d 384, 614 N.W.2d 20
For Knoll: Ralph Kalal

Issue: Whether passenger Foust, injured in the crash of a car whose driver (Knoll) was drunk, was party to the crime of drunk driving and therefore not a “victim” for purposes of restitution.


¶11           Because Knoll has not established either that Foust undertook conduct to aid Knoll in operating a motor vehicle while intoxicated or that Foust intended his conduct to help Knoll drive while impaired, we reject Knoll’s assertion that Foust aided and abetted his driving while intoxicated. Therefore, we conclude that Knoll’s contention that Foust was not a victim because he was a party to the crime of driving while intoxicated is without merit.

These guys drank prodigious amounts of alcohol. Foust purchased at least some of the beer. The inevitable happened, and the tree Knoll drove into was at least as unforgiving as the court of appeals. Sentenced for operating under the influence, Knoll was ordered to pay restitution for Foust’s injuries. Knoll creatively argues that Foust wasn’t a “victim,” because he was party to the crime. The court rejects the argument, even though Foust indisputably provided some of the beer:

  ¶10           While that fact is undisputed, we note there is no evidence: (1) that Knoll’s intoxication resulted from the consumption of those beers purchased by Foust, which consumption had occurred more than three hours before the accident; (2) that Knoll intended to drive after drinking the beers purchased by Foust, especially since all of the men were then riding in Haase’s truck which Haase was driving; (3) that Foust encouraged Knoll to drink the beers he purchased for the purpose of later driving while intoxicated; or (4) that Foust was aware that Knoll would drive later that evening. Furthermore, the crime of which Knoll was convicted involved operating a motor vehicle while intoxicated. The crime was not consuming alcohol. It was not the buying of a six-pack of beer which caused the injuries for which the State seeks restitution. It was Foust’s voluntarily choosing to drink until he was intoxicated, and then choosing to get behind the wheel of a motor vehicle, which caused those damages.

The fourth factor’s probably the most important, keeping in mind that ptac liability is assigned to crimes which are the natural and probable consequence of an intentional criminal act, though the court of appeals doesn’t discuss the problem in these terms. See State v. Asfoor, 75 Wis. 2d 411, 430, 249 N.W.2d 529 (1977).


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