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National Crime Victim Law Institute

State v. Gutierrez-Medina, 442 P.3d 183 (Or. 2019)

September 12, 2019

Defendant pled guilty to driving under the influence of intoxicants (DUII) and third-degree assault, and the court ordered him to pay restitution for the costs associated with the victim’s medical treatment.  Defendant was driving under the influence of intoxicants late at night when he struck the victim, who had walked onto the road in a dark area that was not marked for pedestrian crossing.  Defendant objected to the state’s request for restitution in the amount of the victim’s full medical bills, arguing that the victim’s own negligence was the primary cause of the collision and urged the trial court to apply the civil doctrine of comparative fault to reduce the requested restitution.  The trial court rejected defendant’s argument and ordered defendant to pay the victim’s full medical expenses in restitution.  Defendant appealed, and the Court of Appeals affirmed the judgment of the circuit court, holding that the text of the restitution statute, Or. Rev. Stat. § 137.106, expressly precludes the court from applying comparative fault principles to apportion damages.  The Oregon Supreme Court allowed review and agreed with the appellate court’s decision, but not its reasoning.  The court concluded that defendant’s conviction for third-degree assault established that he was aware that he was using a deadly or dangerous weapon in a way that created a substantial risk of serious physical injury and that he consciously disregarded that risk.  For this reason, the court found that defendant’s conviction for third-degree assault established that he acted with a culpable mental state greater than gross negligence and therefore the doctrine of comparative fault would not be available in a civil action.  Because the court held that the defense of comparative fault would be unavailable to defendant in a hypothetical civil action for the same injury, it declined to address the issue of whether the restitution statute precludes trial courts from reducing the amount of restitution when the victim is partly at fault for the injury.  Affirmed on other grounds.