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State v. Knoll5/11/2000
APPEAL from a judgment of the circuit court for Dodge County: ANDREW P. BISSONNETTE, Judge. Affirmed.
Chad J. Knoll appeals a judgment of the circuit court directing him to pay $7,980 in restitution to Robert Foust, who was injured in an accident Knoll caused by operating a motor vehicle while under the influence of an intoxicant contrary to Wis. Stat. § 346.63(2)(a)1. Knoll argues that Foust is not entitled to restitution because: (1) Foust was a party to the crime; and therefore, he cannot be a victim; and (2) Foust was contributorily negligent. Because we conclude that Foust was not a party to the crime and that Knoll may not raise contributory negligence as a defense in a restitution proceeding, we affirm the judgment of the circuit court.
BACKGROUND
. The relevant facts are not in dispute. In August of 1997, between 2:00 and 3:00 p.m., Chad Knoll, Robert Foust, and Mark Haase decided to drive from a work site to pick up their paychecks. The three got into Haase's truck, and while on the way to their employer 's office, Haase purchased a six-pack of beer. All three men drank the beer while Haase was driving. When they finished the first six-pack, Foust purchased a second six-pack, which they also drank. A short time later they purchased a third six-pack, some of which they also consumed. The drive to their employer took about one and one-half hours.
. After picking up their paychecks, Knoll, Foust and Haase went to a tavern in Jackson. While there, Haase drank at least ten beers and one shot. Foust could not remember exactly how many beers he consumed, but he testified that he drank " uite a bit." Knoll testified that he drank at least eight additional beers at the tavern.
. When they left the tavern, at approximately 6:45 p.m., Knoll drove. On the drive home to Beaver Dam, Foust asked Knoll to pull over because he was driving very fast and weaving in and out of traffic. Knoll refused. Foust then fell asleep. While Foust was sleeping, Knoll hit a tree and all three men were injured. Knoll was charged with, and convicted of, a violation of Wis. Stat. § 346.63(2)(a)1.
. After his conviction, a restitution hearing was held. At that hearing, Haase testified that he had three prior drunk driving convictions, which taught him to let someone else drive and "let them risk the drunk driving" conviction. The circuit court held that Haase was not entitled to restitution because he asked Knoll to drive and gave him the keys, after providing significant amounts of alcohol to him. The court held that there were substantial reasons not to award restitution to Haase. That decision has not been appealed.
. With respect to Foust, the court reasoned that Foust was partly responsible for his own injuries in that he rode with someone whom he knew had been drinking for several hours. The court also found that Knoll had a limited ability to pay restitution within the three years of his probation. Therefore, it awarded Foust partial restitution. Knoll appeals.
DISCUSSION
Standard of Review.
. We independently determine whether the circuit court had authority to order restitution, given a particular set of facts. See State v. Walters, 224 Wis. 2d 897, 901, 591 N.W.2d 874, 875 (Ct. App. 1999). Additionally, whether one is a party to the crime of driving while intoxicated and whether a particular defense may be raised in a restitution proceeding, involve questions of law which we review de novo. See State v. Howard-Hastings, 218 Wis. 2d 152, 154-55, 579 N.W.2d 290, 290 (Ct. App. 1998); Walters, 224 Wis. 2d at 901, 591 N.W.2d at 875-76.
Party to the Crime.
. Knoll con
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