Victim Restitution in a DWI Case

Restitution Among the Costs of a DWI Case

Depending on the circumstances, a DWI arrest, charge, and conviction can be a very expensive proposition. Victim restitution is one of the several potential costs of a DWI case. Depending on any injuries, death, or property damage, victim restitution can be a very high cost, even the highest cost in a DWI case. But restitution is just one of the potential costs of a DWI case. The Texas DWI attorney whom the defendant hires to fight the DWI charge will help the defendant consider, fight, and minimize these other potential costs:

• The court's fine of up to $2,000 or even more for a higher blood-alcohol level in a first offense, $4,000 for a second offense, and $10,000 for a third offense
• Probation fees of up to $100 per month
• Administrative costs of the court
• Alcohol education program costs of $70 to $200
• Ignition interlock device costs of up to $100 per month
• New civil fees under Texas Transp. Code §709.001 of $3,000 for a first offense, $4,500 for a subsequent offense, or $6,000 for blood alcohol over .15, in place of the old Driver Responsibility Program surcharges
• The loss of earned income during any incarceration
• Increased motor vehicle insurance premiums
• Vehicle towing and impound costs

Restitution's Definition

Restitution is the criminal law's way of making the defendant restore or attempt to restore the victim of the crime back to the victim's condition before the crime. As Merriam-Webster's dictionary defines it, restitution is "an act of restoring or a condition of being restored: such as a restoration of something to its rightful owner [or] a making good of or giving an equivalent for some injury [and] a legal action serving to cause restoration of a previous state."

In theory, restitution is a "make whole" remedy. One cannot literally turn back the clock. But a criminal court can make the DWI defendant do something for the victim or pay something to the victim to get the victim on the way back to the victim's normal, pre-DWI life. And that's what restitution does. Restitution is the criminal court's order that the DWI defendant help the victim, usually by paying money to the victim but in some cases to return property or even perform some service for the victim. Restitution is a part of both Texas law and federal law.

Restitution's Goal

Restitution also has a goal or purpose, one that is important to how the trial judge will shape the restitution order and amount. The Texas Court of Criminal Appeals in Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014), summarized that purpose as follows:

Restitution is not only a form of punishment, it is also a crime victim's statutory right. Restitution serves multiple purposes, including restoring the victim to the status quo and forcing an offender to address and remedy the specific harm that he has caused. "A broad interpretation of the restitution statutes provides judges with 'greater discretion in effectuating opportunities for rehabilitating criminals, deterring future harms, and efficiently compensating victims.'" However, the legislature has also recognized limits on the right to restitution: the amount of restitution must be just; it must have a factual basis in the record; and it may be ordered only to a victim of an offense for which the defendant is charged. [Footnotes omitted.]

The Difference Between Restitution and Civil Liability

Restitution in a DWI case may sound like DWI-related civil liability. It is not. Restitution is the criminal court's order in the criminal case brought by the prosecutor on behalf of the state. Civil liability arises out of a private lawsuit by the victim against the negligent defendant.

A DWI accident can certainly lead to civil liability. But the victim would have to file a separate civil lawsuit. Damages in a civil lawsuit may be significantly greater than a restitution award, too. Civil damages could, for instance, include pain and suffering, lost enjoyment of life, and similar non-economic damages.

By contrast, Texas statutory law, as summarized below, generally limits the criminal courts to economic losses the victim suffers when making restitution awards. You won't generally see million-dollar or hundred-thousand-dollar restitution awards for a victim's personal injuries, not like you could expect in a case for civil liability.

Statutory and Case Authority for DWI Restitution

Article 42.037(a) of the Texas Code of Criminal Procedure authorizes the trial judge to order the defendant in a criminal case to pay restitution "to any victim of the offense" or to the state crime fund if the fund has already paid the victim. Article 42.037 doesn't mention DWI offenses specifically. It instead applies broadly to criminal cases. But the Texas Court of Criminal Appeals in Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) clearly held that restitution is available to a victim in a DWI case. Several other Texas Court of Criminal Appeals cases have cited the Hanna case favorably, making it good law in Texas. Other subsections of Article 42.037 make clear that the victim must suffer some personal injury or property damage or loss in order to recover restitution.

The Restitution Measure

The idea, again, of restitution is to make the victim whole. Texas Code of Criminal Procedure Article 42.037(b)(1) explains that in property-loss cases, "the court may order the defendant...to pay an amount equal to...the value of the property on the date of the damage, loss, or destruction." Article 42.037(b)(2) provides that in personal injury cases, "the court may order the defendant to make restitution to...the victim for any expenses incurred by the victim as a result of the offense" or to the state crime victim fund if the fund already paid those expenses. In either case of property loss or personal injury, Article 42.037(c) has the court consider the loss amount and "other factors the court deems appropriate."

Restitution in a DWI Case Involving Death

A death due to a DWI is an awful circumstance, one likely to lead to intoxication manslaughter charges. A conviction on that charge would likely lead to prison time and a hefty fine. But restitution in a DWI death case is also a potential cost. If the DWI incident results in the death of a person, then Texas Code of Criminal Procedure Article 42.037(d) provides that if "the victim is deceased the court shall order the defendant to make restitution to the victim's estate." The DWI defendant, in essence, pays restitution to the victim's surviving family members. Indeed, the DWI defendant might, in theory, not just have to pay money to the estate but instead "provide services." Article 42.037(b)(3) provides, "If the...victim's estate consents, the court may...order the defendant to make restitution by performing services instead of by paying money." Article 42.037(b)(3) also enables the victim's estate to designate an organization, for example, a charity, to which the DWI defendant would have to make a restitution payment.

The Prosecution's Restitution Proof Burden

Texas Code of Criminal Procedure Article 42.037 and Texas Court of Criminal Appeals decisions like the one in Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) make clear that the prosecution carries the burden to prove restitution. The proof burden, though, is the lower "preponderance" standard that the courts use in civil cases, not the higher "beyond a reasonable doubt" standard used in criminal cases. The prosecution must prove that the DWI offense was the proximate cause of a victim's property loss, personal injury, or death. Just because the defendant drank and drove and someone got hurt in an accident doesn't mean restitution is due. The prosecution must connect the DWI to the injury or loss. If the injury or loss would have happened anyway without the DWI, then restitution is not due.

Examples of Restitution

If the DWI defendant crashes a vehicle into another vehicle or a sign or structure along the highway, or the DWI defendant destroys someone's personal property, and the intoxication was a cause of that property damage, then the court could order the DWI defendant to pay for the property loss. Restitution could include vehicle repair or replacement, replacement of clothing and personal effects, and repair or replacement of personal items or equipment in the crash vehicles. Restitution could also include the cost of repairing or replacing mailboxes, signs, fences, and lights along the highway. If the DWI defendant's intoxication is the cause of another's personal injury, then the restitution order could include payment of medical expenses and wage loss. Find any economic, dollars-and-cents loss attributable to the DWI defendant's intoxication, and a restitution order could make the DWI defendant pay it.

Insurance Coverage and Restitution

Motor vehicle insurance does not pay for restitution. Motor vehicle insurance could pay for vehicle repair or replacement and to cover civil liability to crash victims. But the DWI defendant who faces an order of restitution cannot turn to the defendant's motor vehicle insurer to pay that restitution. Motor vehicle insurers that pay accident losses due to the DWI defendant's intoxication, though, may be "victims" under Texas's restitution statute. Texas Code of Criminal Procedure Article 42.037(f)(1) specifically provides for a restitution order to reimburse a person or entity paying the victim's loss. In other words, the DWI defendant could end up paying back an insurer that paid for vehicle damage or other victim losses due to the defendant's intoxication.

When the DWI Defendant Can't Pay Restitution

Just because the criminal court orders restitution doesn't mean the DWI defendant will be able to pay it. The criminal court will, on the other hand, give the DWI defendant every good reason to pay restitution. If the DWI defendant does not pay restitution, then the court can revoke deferred adjudication, probation, or other favorable terms of a plea bargain or sentence.

Appeal of Restitution

If the court orders restitution without having the factual basis for doing so, then the DWI defendant can challenge the restitution on appeal. The Texas Criminal Court of Appeals has the authority to reverse an unwarranted or excessive restitution award. But the DWI defendant must challenge and object to the restitution in the trial court. If the defendant simply ignores the restitution order as part of a plea agreement, then the appellate court will not disturb the award. See Gutierrez-Rodriguez v. State, 481 S.W.3d 226 (Tex. Crim. App. 2014).

Contact a Harris County DWI Defense Attorney for Restitution

Restitution is not a foregone conclusion. Neither are the other crippling costs that can follow a DWI arrest. The best way to fight, control, and minimize the costs of a DWI case is to retain a Texas DWI attorney. A DWI charge is not the same as a conviction. A skilled Texas DWI lawyer has many ways to defend a DWI charge. The best way to avoid restitution is to beat the DWI charge. Beating the DWI charge means that you won't face a restitution order. You also won't face the other costs associated with a DWI conviction. And the best way to beat a DWI charge is to get the best available DWI attorney representation.

If you or someone you love faces a DWI charge, then get expert help. Premier Texas DWI defense attorney Doug Murphy is available for your aggressive and effective DWI defense representation. Let Attorney Murphy help you fight, defend, and defeat the huge potential costs. Attorney Murphy's professional reputation is so strong that he lectures nationwide, helping other lawyers learn DWI procedures. Other lawyers have voted Attorney Murphy Best Lawyers in America's Lawyer of the Year. Attorney Murphy is one of only two Texas lawyers holding both Criminal Law Board Certification and DWI Board Certification. Contact Murphy & McKinney Law Firm, P.C. online or at 713-229-8333 today for experienced DWI defense representation.