Compensable Losses
Until 2005, the restitution statute limited recovery to “pecuniary damages,” which were in essence any special damages the victim could recover in a civil lawsuit, incorporating the entirety of civil tort law into the restitution statute. ORS 137.103 (2003). The legislature amended the statute in 2005 to simply reference the definition of “economic damages” in ORS 31.710(2)(a), with the exception of lost future earning capacity:
objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past… impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
The definition no longer explicitly limits recovery to losses for which the victim could actually recover in a civil lawsuit and it is unclear if that is still the case. No appellate court has yet ruled on what difference, if any, the change in definition has made to the scope of available restitution. The DOJ’s testimony at legislative committees was that the bill’s purpose was to clarify the definition.
Note that this definition of damages is inapplicable under the hit and run statute and it is unclear just what the scope of damages under hit and run restitution is. State v. Moore, 243 Or App 199 (2011). In Moore, the defendant argued that the cost of clearing a car’s title and financing fees on a new car should not be recoverable, but the court held the objection was not preserved and rejected the idea that the definition of damages under the general restitution statute was relevant.
Since any “objectively verifiable monetary loss[]” is potentially recoverable, the primary consideration is whether or not the loss was suffered “as a result of” the defendant’s criminal activities. This inquiry is equivalent to “but for” causation in tort law. State v. Bullock, 135 Or App 303, 307 (1995).
Cases Finding Causation
State v. Stephens, 183 Or App 392 (2002) – When defendant was convicted of unauthorized use of a vehicle but not of stealing the cars wheels and tires, the court nevertheless could impose restitution for cost of wheels and tires, because by leaving the car unprotected in his friend’s yard, he facilitated the theft, establishing a causal link between his possession and the loss.
State v. Bullock, 135 Or App 303 (1995) – Payments for psychological care following sexual abuse of a minor over a course of 4 years were “as a result of” that sexual abuse, since the emotional and psychological problems were a “natural result” of the abuse.
State v. Porter, 113 Or App 326 (1992) – There is a reasonable causal link between attempting to elude and damage to police cars involved in chasing the suspect.
State v. Stratton, 99 Or App 538 (1989) – While an accident that occurs while driving intoxicated can be caused by something other than the DUI, evidence that the driver was at fault in the accident is sufficient to satisfy causation requirement.
State v. Wilcher, 96 Or App 603 (1989) – Payments for damage to a car, towing and storage fees, and the replacement of personal property are causally linked to unauthorized use of vehicle.
Cases Not Finding Causation
State v. McBee, 204 Or App 687 (2006) – When evidence at sentencing was that another person damaged the vehicle, the defendant could not be ordered to pay for the damage.
State v. Marsh, 187 Or App 47 (2003) – Defendant could not be ordered to pay for costs of caring for 69 animals removed from his home when he plead guilty to 10 counts of animal neglect regarding 10 animals. There is no causal link between his conviction and the care of the other 59 animals.
State v. Stockton, 105 Or App 162 (1991) – When the defendant was convicted of two months of criminal nonsupport, the restitution cannot exceed two months’ worth of child support payments.
State v. Lefthandbull, 306 Or 330 (1988) – There was no causal link between attempted manufacture of methamphetamine and the damage to a house that is associated with meth labs when no evidence was admitted as to what specific acts constituting attempted manufacture the defendant committed.
Losses Not Personally Caused by Defendant
Generally, a defendant cannot be ordered to pay restitution for losses caused by others. However, in certain situations, he could be. For instance, when the defendant was convicted of selling a stolen diamond, he was as responsible for the loss to the insurer caused by the theft as the person who actually stole it, and could therefore be ordered to pay restitution. State v. Hazlitt, 77 Or App 344 (1986).
Similarly, when defendant admitted taking some, but not all of the items stolen from a house he burglarized, he could be ordered to pay restitution for all the missing items, because if others stole them, it was because he facilitated the theft by leaving the door open. State v. Doty, 60 Or App 297 (1982).
Finally, a defendant who committed a string of robberies with others and stole a camera that codefendants sold to a pawnbroker could be ordered to pay restitution to the pawnbroker, since the group traveled to Portland for the purpose of selling the stolen goods and the defendant was therefore equally responsible for the loss. State v. Nelson, 50 Or App 297 (1981).
However, contrast State v. Sigman, 141 Or.App. 479 (1996), where the court held that the defendant could not be ordered to pay restitution for an assault committed by a codefendant, even though the two were on a “crime spree” committing burglaries in several states and the assault occurred as part of one such burglary.
Future Costs
Restitution can encompass anticipated, but not readily ascertainable future costs as long as they are reasonably predictable. For instance, a capped award for future counseling in a case involving rape and sexual abuse is allowed under the statute. State v. Allen, 122 Or App 587 (1993). The state must introduce evidence that the expenses will actually occur. State v. Powell, 234 Or App 589 (2010); State v. Cufaude, 232 Or App 280 (2009)
Specific Types of Costs
Attorney’s Fees
Attorney’s fees for civil actions relating to the criminal activities were not recoverable since they could not be recovered in a civil suit. State v. O’Brien, 96 Or App 498 (1989). Since the new definition does not explicitly require that the losses be recoverable in a civil suit, it is unclear if this is still the case, but attorney’s fees do not seem similar in kind to the other items listed in the definition.
Surveillance System
DA did not introduce evidence that pharmacy was required to install a surveillance system by the DEA and therefore the pharmacy did not “incur” the cost of installing the system. State v. Steckler, 236 Or App 524 (2010).
Lost Profits
Victims may recover lost profits if they can be proved with reasonable certainty. For instance, when defendant rented a Nintendo machine and failed to return it, the store could receive profits it would have received had they been able to rent the machine out. State v. Jurado, 137 Or App 538 (1995).
Investigation Costs
Telephone company could receive award for costs incurred in investigating defendant’s unauthorized use of their network. State v. Lindsly, 106 Or App 459 (1991).
Drug Buy Money
When the city or police use their own money to buy drugs from the defendant, that money can be recovered through restitution. State v. Pettit, 73 Or App 510 (1985).
Mitigation
Victims cannot recover restitution caused by their failure to mitigate losses. For instance, when defendant failed to return a Nintendo system he rented from a video store, the store could recover lost profits only for the period until they should have reasonably purchased a new machine. By not buying a new one for 130 days, the store unreasonably caused some of the lost profits. State v. Jurado, 137 Or App 538 (1995). The burden of proving failure to mitigate falls on the defendant. Id.
