Following a plea or conviction of felony or misdemeanor DUI in California, the Criminal Court will schedule the case for a Restitution Hearing if an accident is involved. The Criminal Court will order the defendant to pay restitution to any victim as a condition of probation. The issue of who is a victim and what restitution can be claimed may be complicated resulting in a lengthy evidential hearing. However, most cases result in a stipulation as to the amount and an agreement as to monthly payments that the defendant can afford to pay.
In a case involving personal injury, the criminal court will consider all out of pocket expenses incurred by the victim, including the loss of a deductible, loss of wages, medical expenses and any uninsured economic damage such as vehicle repairs. However, restitution for pain and suffering is generally not considered appropriate for a criminal court to determine. A claim for pain and suffering should be addressed in a civil law suit.
In most cases, restitution is covered by the defendant's insurance. In these cases, the victims are made whole by the insurance company avoiding the necessity for a criminal restitution hearing. It is advisable to obtain proof of the insurance settlement prior to the restitution hearing to present to the prosecutor and judge, showing that restitution has been paid.
Sometimes however, a victim attends court claiming an amount over and above the insurance settlement. In this case, the criminal court is not bound by the insurance settlement and may order additional restitution to the victim if it is verifiable and reasonable. Unreasonable claims will be rejected. The defendant is entitled to credit for any amount paid by his insurance company. (People v. Bernal (2002) 101 Cal.App.4th 155)
In the event of a dispute, the defendant is entitled to a hearing to determine the appropriate amount of restitution, although the criminal court has broad discretion as to the amount to be ordered. The victims will be called to testify and present documentary proof of their claim. The defense is entitled to cross examine the victims.
If a victim has been compensated by their own insurance company either in part or in whole, the victim is still entitled to request restitution direct from the defendant. If the victim receives double compensation, they are theoretically under an obligation to re-imburse their own insurance company from the money received from the defendant. However, this is a civil matter and not one for the criminal court. The victim's insurance company is not considered a victim for criminal restitution purposes (People v. Birkett (1999) 21 Cal.4th 226).
It is often an effective negotiating tactic in a criminal case to reach a settlement with a victim prior to resolution of a criminal case. Sometimes, a "civil compromise" will be considered by the court as a reason to dismiss criminal charges such as "hit and run". In a DUI case, charges are unlikely to be dismissed just because a civil compromise has been reached with a victim, but such an agreement may mitigate penalties substantially, particularly in felony DUI cases.
If you have been arrested for DUI in California following a traffic collision, please call Los Angeles DUI lawyers at Gold & Witham for a free case evaluation.