Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB87 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 87
5	5	March 8, 2023 - Introduced by Representatives KITCHENS, TUSLER, SORTWELL,
6	6	ARMSTRONG, BEHNKE, DITTRICH, DUCHOW, GUSTAFSON, MURPHY, MURSAU,
7	7	NOVAK, O'CONNOR, RETTINGER and ROZAR, cosponsored by Senators JAMES,
8	8	CABRAL-GUEVARA, JACQUE and TOMCZYK. Referred to Committee on Judiciary.
9	9	*AUTHORS SUBJECT TO CHANGE*
10	10	AN ACT to amend 973.20 (8); and to create 973.20 (4c) of the statutes; relating
11	11	to: restitution upon conviction of vehicular homicide.
12	12	Analysis by the Legislative Reference Bureau
13	13	Under current law, when a defendant is sentenced or placed on probation for
14	14	any crime, the court is required to order the defendant to pay restitution to the victim
15	15	of the crime to pay for costs incurred by the victim or the victim's estate as a result
16	16	of the crime. Under this bill, if a person is convicted of the crime of homicide by
17	17	intoxicated use of a vehicle, and the victim of the homicide is a parent of a minor child,
18	18	the restitution order may include the reasonable and necessary costs of maintenance
19	19	for each child of the victim until the child turns 18 or until the child turns 19 if the
20	20	child is still enrolled in high school. Under current law, when determining the
21	21	amount of restitution to order, the court considers the amount of loss sustained by
22	22	the victim, the financial resources and earning ability of the defendant, the needs of
23	23	the defendant's dependents, and any other factors the court deems appropriate.
24	24	Under the bill, when setting restitution payed to a parent or guardian of a victim's
25	25	child, the court may also consider the financial needs and resources of the child and
26	26	the surviving parent or guardian, the standard of living that the child is accustomed
27	27	to, the child's emotional needs and physical and legal custody arrangements, and the
28	28	reasonable work-related child care expenses of the surviving parent or guardian.
29	29	Under the bill, this portion of restitution is paid to the surviving parent or guardian
30	30	of the child instead of to the victim or victim's estate.
31	31	Under current law, a restitution order does not affect a victim's right to file a
32	32	civil lawsuit against a defendant to recover damages. The damages awarded in the
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34	34	2 - 2 -2023 - 2024 Legislature LRB-0323/1
35	35	EAW:amn
36	36	ASSEMBLY BILL 87
37	37	civil suit are offset by the amount of restitution ordered. The bill specifies that a
38	38	parent or guardian of a victim's children also retains the right to file a civil suit
39	39	against the defendant, and that restitution ordered to a parent or guardian of the
40	40	victim's children will offset any damages awarded in the civil suit. Additionally, if
41	41	the parent or guardian is awarded civil damages before restitution is ordered, the
42	42	restitution order will be reduced by the amount of civil damages awarded to the
43	43	parent or guardian.
44	44	For further information see the state fiscal estimate, which will be printed as
45	45	an appendix to this bill.
46	46	The people of the state of Wisconsin, represented in senate and assembly, do
47	47	enact as follows:
48	48	SECTION 1. 973.20 (4c) of the statutes is created to read:
49	49	973.20 (4c) (a) If the defendant violated s. 940.09 (1) (a) to (bm) and the
50	50	violation resulted in the death of a parent of a minor child, the restitution order may
51	51	require that the defendant pay an amount that is reasonable and necessary for the
52	52	maintenance of each of the victim's children until each child reaches 18 years of age,
53	53	or, if the child is pursuing an accredited course of instruction leading to the
54	54	acquisition of a high school diploma or its equivalent, until the child reaches 19 years
55	55	of age. Notwithstanding sub. (1r), restitution ordered under this subsection shall be
56	56	paid to the surviving parent or legal guardian of the child.
57	57	(b) In addition to the factors under sub. (13) (a), the court may consider all of
58	58	the following in determining the amount of restitution ordered under this
59	59	subsection:
60	60	1. The financial needs and resources of each child.
61	61	2. The financial needs and resources of the surviving parent or guardian of the
62	62	child, including the state if the child is in the custody or guardianship of the state.
63	63	3. The standard of living to which the child is accustomed.
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82	82	SECTION 1
83	83	ASSEMBLY BILL 87
84	84	4. The physical and emotional condition of the child and the child's emotional
85	85	needs.
86	86	5. The child's physical and legal custody arrangements.
87	87	6. The reasonable work-related child care expenses of the surviving parent or
88	88	guardian.
89	89	(c) Restitution may not be ordered under this subsection if all of the following
90	90	apply:
91	91	1. Prior to the sentencing court ordering restitution, the surviving parent or
92	92	guardian of the child obtains a judgment in a civil action against the defendant
93	93	arising out of the facts or events that are the basis for a restitution order.
94	94	2. The judgment in the civil action includes the amounts that may be ordered
95	95	as restitution under this subsection.
96	96	(d) A defendant may not be ordered to pay restitution for his or her own child
97	97	under this subsection.
98	98	SECTION 2. 973.20 (8) of the statutes is amended to read:
99	99	973.20 (8) Restitution ordered under this section does not limit or impair the
100	100	right of a victim or the parent or guardian of a victim's child to sue and recover
101	101	damages from the defendant in a civil action. The facts that restitution was required
102	102	or paid are not admissible as evidence in a civil action and have no legal effect on the
103	103	merits of a civil action. Any restitution made by payment or community service shall
104	104	be set off against any judgment in favor of the victim in a civil action arising out of
105	105	the facts or events which were the basis for the restitution. The court trying the civil
106	106	action shall hold a separate hearing to determine the validity and amount of any
107	107	setoff asserted by the defendant.
108	108	SECTION 3.0Initial applicability.
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133	133	25 - 4 -2023 - 2024 Legislature LRB-0323/1
134	134	EAW:amn
135	135	SECTION 3 ASSEMBLY BILL 87
136	136	(1) This act first applies to restitution ordered for a crime committed on the
137	137	effective date of this subsection.
138	138	(END)
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