A Blonde Girl Staring Pensively Through A Modern Car’s Backseat Window

Nov. 10, 2022 – A man’s conviction for operating while intoxicated (OWI) means that his minor daughter, who was a passenger in the car when he was arrested, was a victim under the state’s criminal restitution statute, the Wisconsin Court of Appeals has ruled.

In State v. Gahart, 2021AP1841 (Nov. 2 2021), the Court of Appeals District II ruled that because OWI with a minor passenger under the age of 16 is a crime, the man’s daughter was a victim entitled to request restitution.

Wild Driving

The police arrested Mark Gahart in Kenosha County for OWI after they pulled him over and determined that his blood alcohol level was .013.

Jeff M. Brown
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Gahart pled guilty to OWI with a minor passenger under sixteen years of age under Wis. Stat. section 346.63(1)(a) and 346.65(2)(f)2, because his daughter was in the vehicle when he was arrested.

During Gahart’s sentencing hearing, the child’s mother told the circuit court that Gahart scared his daughter during the trip that led to his arrest by driving erratically.

The daughter asked Gahart to slow down, her mother said, but Gahart “silenced her” while he tailgated and tried to pass other vehicles.

Request for Restitution

The mother requested restitution from the circuit court, to cover costs and fees for a family court proceeding that she said arose out of Gahart’s OWI arrest.

Gahart argued that his daughter was a not victim entitled to restitution. He also argued that his daughter’s presence in his vehicle and the amount of restitution sought by his daughter’s mother lacked a causal nexus.

The circuit court concluded that Gahart’s daughter was not a victim and issued a post-judgment order denying restitution. The state appealed.

Statute is Clear

Writing for a three-judge panel, Judge Lisa Neubauer explained that under section 950.02(4)(a)1., for purposes of restitution a victim is defined in part as “[a] person against whom a crime has been committed.”

Additionally, Neubauer pointed out, under the statute the non-offending parent of a child victim is also a victim.

Judge Neubauer the noted that while the legislature classified a first OWI offense under section 346.63(1) as non-criminal, in 2009 it made any OWI violation under section 346.63(1) a crime if a minor under the age of 16 was present in the vehicle.

“The legislative determination recognizes that a minor is usually unable to object or leave the vehicle and is put at significant risk of harm by the intoxicated driver’s actions,” Neubauer wrote. “When the drunk driver is a parent, the minor’s inability to protect himself or herself is even more acute.”

Not a Victimless Crime

Gahart argued that his was a victimless crime. The court of appeals disagreed.

“As reported by his minor daughter’s mother, Gahart placed his daughter in the vehicle and drove erratically from Burlington to Kenosha, refused to slow down, followed other vehicles too closely, and frequently attempted to pass others,” Judge Neubauer wrote.

“By directing his daughter to ride in a vehicle he was too intoxicated to drive safely, Gahart committed a crime against her.”

Neubauer concluded that both Gahart’s daughter and the girl’s mother were therefore crime victims, and as such each had the right to seek restitution from Gahart.

The court of appeals reversed the circuit court’s post-judgment order denying restitution and remanded the case to the circuit court.