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One Court of Justice Blog

April 13, 2017

COA addresses what restitution can be awarded to governmental entities for expenses incurred in a criminal investigation

The amount of restitution awarded to a governmental entity in connection with a criminal investigation must be directly caused by criminal conduct and may not be based on ordinary costs of investigation, said the Court of Appeals in People v Wahmhoff, No. 330211. Because the prosecution failed to establish the loss incurred by the governmental entities beyond ordinary costs of investigation and operation, the Court of Appeals vacated a restitution award of $4,301.28.
 
Sometime before 7:00 a.m., defendant crawled inside an oil pipeline in an act of protest against an energy company. Defendant refused to leave the pipe until 5:00 p.m., disrupting an entire workday.  Because defendant was in a confined space and an overpowering chemical smell emanated from the pipe, police and fire personnel were called to the scene. They remained on site for a full day, providing a ventilation fan, and were prepared to respond if defendant lost consciousness. When he exited the pipe, defendant was arrested.
 
Defendant was convicted of resisting and obstructing a police officer and trespassing. The trial court ordered him to pay $4,301.28 in restitution:
  • $520.28 to the local sheriff’s department for officer overtime compensation;
  • $3,000 to the fire department for the use of fire engines and presence of personnel on the scene; and
  • $781 to the fire department for compensation paid to two lieutenants and the use of one fire engine.
 Defendant appealed, arguing that the restitution award was improper because it was speculative, arbitrary, and based on costs or losses not eligible for reimbursement.
 
In weighing defendant’s arguments, the Court of Appeals examined the Crime Victim’s Rights Act (“CVRA”), MCL § 780.751 et seq., which governs whether a sentencing court’s restitution order is appropriate. Following a line of its own earlier decisions, the Court of Appeals held that the CVRA does not permit a sentencing court to order restitution for general costs of criminal investigation and prosecution. And restitution based on routine overtime and regular compensation fell into the category of general costs.
 
But the Court of Appeals distinguished other expenses in this case from the general costs of investigation.  Defendant’s day-long refusal to exit the pipe prompted the use of resources far from routine investigation, and that instead could be characterized as “direct financial harm as a result of the crime.”
 
Yet the trial court record did not reveal the point at which ordinary costs of investigation shifted to financial losses directly resulting from defendant’s crime. Further, the trial court had adjusted the restitution calculations based only on “common sense” and its “experience.” Such an approach is inconsistent with the standard for restitution in the CVRA, which requires a “reasonably certain factual foundation for a restitution amount.”
 
The Court of Appeals remanded the case, directing that if the prosecution chooses to pursue restitution on behalf of the applicable governmental entities, “it must establish, with reasonable certainty, the amount of any loss that (1) did not constitute an ordinary, general cost of investigation or operation and (2) was directly caused by defendant’s criminal offense.”

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