Causation Must Be On The Record for Restitution in DWI Cases

Fort Worth Driving While Intoxicated

Last week, the Court of Criminal Appeals handed down a decision that changes how restitution is ordered on intoxication offenses. In Hanna v. State, the Court of Criminal Appeals ruled that restitution can be ordered in driving while intoxicated cases, laying out a two-fold requirement: the record must reflect the defendant caused the loss and the record must reflect the criminal offense was the proximate cause of the damages. Hanna v. State, PD-0876-13, 2014 WL 1375456 (Tex. Crim. App. Apr. 9, 2014). The case turned on whether restitution can be ordered in driving while intoxicated cases, which are generally considered victimless crimes, and whether restitution can be ordered against someone who is not named in the charging instrument. The Court of Criminal Appeals ruled affirmatively to both issues.

DWIs are considered “victimless crimes” because the offense can occur without a victim.

Article 42.037 (a) of the Code of Criminal Procedure states that a trial judge has discretion to order a defendant to make restitution “to any victim of the offense.” Article 42.037 (b)(1) allows restitution for “damage to or loss or destruction of property of a victim of the offense” and (b)(2) provides for restitution for “personal injury to a victim.”

While the Code of Criminal Procedure comprehensively addresses issues related to the restitution, it does not define the term “victim.”

Appellant argued that Article 42.037 of the Code of Criminal Procedure limited payment of restitution to only victims of an offense and because there was no named victim in the charging instrument in the driving while intoxicated case, the trial judge could not order restitution. Article 42.037 (k) provides that the “burden of demonstrating the amount of the loss sustained by a victim as a result of the offense is on the prosecuting attorney” with the standard of proof being a preponderance of evidence. It also provides that the court “shall resolve any dispute relating to the proper amount or type of restitution.” While Article 42.037 of the Code of Criminal Procedure comprehensively addresses issues related to the restitution, it does not define the term “victim.” The Court of Criminal Appeals tackled the question of how to resolve whether there are victims in “victimless cases” and whether a person can be a victim if they are not named in the charging document.

Restitution may be ordered in a DWI or intoxication-related offense.

Driving while intoxicated (DWI) is a considered victimless crime because the offense can occur without there being a victim. Despite this, there are many DWIs that cause property damage or personal injury. A crime is not truly “victimless” if someone has been injured or suffered a loss due to the offense. The Court held that for purposes of the restitution statute, a victim is any person who suffered loss as a direct result of the criminal offense.

A victim need not be named in the charging instrument.

There is nothing in the Code of Criminal Procedure requiring that a victim be alleged in the charging instrument. The defendant may be ordered to make restitution to “any victim of the offense.” From a public policy perspective, allowing restitution in DWI cases supports the purpose of criminalizing driving while intoxicated in order to prevent the carnage caused by drunk drivers-fatalities, serious injuries and property damage.

The record must reflect the DWI caused the damage or injury.

For a order of restitution on a DWI or similar intoxication-related offense to stand, the record must reflect more than the fact that the defendant  caused the damage or  injury. The record must reflect that the criminal offense (here, of driving while intoxicated) was the proximate cause of the loss. In this particular case, there was evidence that the defendant hit the light pole and damaged it, but the record did not reflect the fact that he was intoxicated when he did so. Therefore the order of restitution did not stand. Image courtesy of giovanni under Creative Commons licensing.

For more information contact a Fort Worth DWI Attorney.

Sarah is a law school graduate of Texas Wesleyan University School of Law, now known as Texas A&M School of Law. She participated in various school organizations and programs including the Criminal Prosecution Clinic, Family Law Clinic and the Law Fellowship for 2012. As part of those programs she conducted multiple jury trials, numerous probation revocations, temporary order hearings as well as motions to suppress. She interned multiple times at Tarrant County District Attorney’s Office where she worked alongside assistant district attorneys on cases from beginning until the end. She volunteered at Justice for our Neighbors, where she conducted research to help asylum seekers with their legal issues. She also participated in drafting a legislation that was proposed to amend the Ohio Constitution. Sarah was born and raised in Bosnia and Herzegovina, until 2005 when she came to United States as an exchange student. She continued her education by graduating from Bluffton University with Bachelors in History, followed with a Juris Doctor from Texas Wesleyan University School of Law. She is fluent in English, Bosnian/Serbo/Croatian and Spanish. She is interested in becoming a trial attorney, and has a demonstrated interest in criminal law. Her other areas of interest include family law, international law, and the prosecution of war criminals.