Kenosha Circuit Court Judge Jason Rossell had an important decision overturned by The Wisconsin Court of Appeals. This occurred a little less than two years ago, but KCE was only recently made aware of the decision by the higher court.

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Mark J. Gahart plead guilty to Felony Hit And Run – Involving Injury, and OWI (2nd With Passenger Under 16 Years Old.)

According to the Court of Appeals decision:

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Mark J. Gahart was convicted of operating while under the influence of an intoxicant (OWI) with a minor passenger in the vehicle. [Judge Rossell] determined that the minor was not a victim of the OWI offense and entered a judgment of conviction which was silent as to restitution and a postjudgment order stating that “Restitution is not ordered.” The State’s appeal raises the narrow issue of whether the minor passenger has a right to restitution. We conclude that the minor is a victim of Gahart’s crime under the restitution statute, Wis. Stat. § 973.20. Accordingly, we reverse [Judge Rosells’] postjudgment order denying the right to seek restitution and remand for further proceedings consistent with this opinion.

The minor’s mother told [Judge Rossell] at sentencing that Gahart “placed [his daughter] in a vehicle and scared her with his erratic driving from Burlington to Kenosha.” The mother reported that her daughter asked Gahart to slow down, but he “silenced her” as he followed other vehicles closely and attempted to “pass everybody.”

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The Court of Appeals wrote in part:

“The Legislature has determined to criminally punish and deter drivers who subject minors to the grave risks associated with drunk driving, identifying a minor as one against whom a crime has been committed. We reject Gahart’s contention that this is a victimless crime. As reported by his minor daughter’s mother, Gahart placed his daughter in the vehicle and drove erratically from Burlington to Kenosha, refused to slow down, followed other vehicles too closely, and frequently attempted to pass others. By directing his daughter to ride in a vehicle he was too intoxicated to drive safely, Gahart committed a crime against her.

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For the reasons set forth above, the minor passenger and her nonoffending parent are crime victims; each has the statutory rights of crime victims, including the right to seek restitution. The circuit court declined to address whether the mother is entitled to recover the expenses and fees she incurred in the family court proceeding as restitution. Accordingly, we reverse the postjudgment order denying restitution and remand to the circuit court to conduct further proceedings to determine whether an award of restitution is appropriate.”

Judge Rossell gave Gahart 90 days of work release and two years of probation for the felony conviction. Gahart’s attorney was Ted Kmiec.

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