State v. Mark J. Gahart, 2021AP1841-CR, District 2, 11/2/22 (recommended for publication); case activity (including briefs)

The court of appeals holds that driving while intoxicated with a minor passenger is not a victimless crime: the minor passenger is a victim for purposes of the restitution statute.

Gahart was convicted of OWI while his minor daughter was in the car. The daughter’s mother sought restitution for expenses and fees incurred in a family court proceeding with Gahart that she contended arose due to his crime. Without determining whether the expenses and fees were recoverable under § 973.20, the circuit court denied the mother’s request on the ground that the minor (and thus the mother) wasn’t a “victim” of the offense. (¶¶2-5).

The court of appeals reverses and remands for a restitution hearing.

¶8     For purposes of restitution, a victim is defined under Wis. Stat. § 950.02(4)(a)1. in part as “[a] person against whom a crime has been committed.” See also State v. Hoseman, 2011 WI App 88, ¶15, 334 Wis. 2d 415, 799 N.W.2d 479. If a child is a victim, the child’s nonoffending parent is also a victim. See Sec. 950.02(4)(a)2., (b)….


¶11     The State must prove three elements beyond a reasonable doubt to establish OWI with a minor passenger: (1) “The defendant [drove or operated] a motor vehicle on a highway”; (2) “The defendant was under the influence of an intoxicant at the time the defendant [drove or operated the] motor vehicle”; and (3) “There was a minor passenger under 16 years of age in the vehicle.” WIS JI—CRIMINAL 2663D (footnotes omitted). In the comment to WIS JI—CRIMINAL 2663D, the jury instruction committee wrote that “[b]ecause the presence of the minor passenger makes conduct criminal that would otherwise be a forfeiture, the Committee concluded that it becomes an element of the crime.” We agree.

¶12     Here, the Legislature explicitly and unambiguously identified the presence of a minor passenger as an element of a crime involving operating while intoxicated. See State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (we give statutory language its plain meaning). 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. When the drunk driver is a parent, the minor’s inability to protect himself or herself is even more acute. ….

¶13     The Legislature has determined to criminally punish and deter drivers who subject minors to the grave risks associated with drunk driving, identifying a minor as one against whom a crime has been committed. We reject Gahart’s contention that this is a victimless crime. 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. By directing his daughter to ride in a vehicle he was too intoxicated to drive safely, Gahart committed a crime against her.