Sunday, March 6, 2011

Restitution in California DUI accident cases

Restitution in California DUI accident cases

In California DUI-related accident and drunk driving injury cases, criminal courts are required to ultimately impose payment of restitution by the defendant to the victim as part of or a condition of probation.

California Superior Courts make restitution orders requiring the defendant to pay the victim and/or victims a pre-determined amount of money calculated by any of the following agencies or their assigned representatives: the prosecuting agency, a victim witness assistant program or the county probation department.


The determined amount of the restitution order is the total amount of restitution owed to the victim as a result of actual losses caused by the defendant’s DUI-related criminal conduct.

The assigned prosecutor or his/her respective agency will compile bills, invoices and other documentary evidence of the victim’s out-of-pocket or economic losses to establish a total amount of restitution to be paid by the defendant in order to reimburse or make the victim whole.


(In civil law, specifically tort law, restitution is established differently through the issue of damages. Victims are not limited or prevented in seeking criminal restitution by what a civil action award or settlement agreement.)


In criminal law, restitution is based on the out-of-pocket economic losses which the DUI victim can establish through documentary evidence. A victim who incurs professional fees (i.e., accountants, lawyers / attorneys, investigators, etc.) to assist the victim in establishing the amount of the actual loss or additional out of pocket expenses incurred as a result the loss, harm or injury is also entitled to recover those fees as part of the total restitution amount owed.



DUI Victim’s Right to Restitution = A California Constitutional Right to Restitution

Victims who suffer losses as a result of criminal activity have the right to restitution for damages resulting from that crime. Cal. Const. Art I, §28(b).



Statutory Right to Restitution and Legislative Intent


Penal Code §1202.4(a)(1) states:


It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.



Impact of Insurance Payments and/or Civil Court Settlements on California Criminal Court Determinations of Restitution Amount Owed to the DUI Victim


People v. Bernal (2002) 101 Cal.App.4th 155, holds that a release of liability given by the victim to the defendant’s insurance company as a part of a settlement does not release the defendant from his or her restitution obligation.


Settlement proceeds paid by defendant’s insurance to the victim should be offset against the amount of total restitution claimed / determined by the court to be paid by the defendant to the victim.


Costs and Attorney Fees Incurred by DUI Victim


Costs and attorney fees incurred by a victim in recovering a settlement award for economic loss is a proper subject of restitution.

In People v. Pinedo (1998) 60 Cal.App.4th 1403, the victim’s P.I. attorney recovered a $22,000 settlement from the defendant’s insurance company as a result of injuries caused by the defendant’s drunk driving. In accordance with a contingency fee agreement, the victim’s attorney was paid $7,333 out of the $22,000. The opinion held that the $22,000 was payment for direct economic losses, and that the attorney’s fees were necessary and proper expenses directly incurred by the victim, and similarly entitled to reimbursement.

The attorney’s fee risk is not insurable. Baker v. Mid-Century Insurance Company (1993) 20 Cal.App.4th 921.


DUI Restitution As A Condition Of Probation


Penal Code §1203.1(b) states:


The court shall consider whether the defendant as a condition of probation shall make restitution to the victim or the Restitution Fund. Any restitution payment received by a probation department in the form of cash or money order shall be forwarded to the victim within 30 days from the date the payment is received by the department. Any restitution payment received by a probation department in the form of a check or draft shall be forwarded to the victim within 45 days from the date the payment is received by the department, provided, that payment need not be forwarded to a victim until 180 days from the date the first payment is received, if the restitution payments for that victim received by the probation department total less than fifty dollars ($50). In cases where the court has ordered the defendant to pay restitution to multiple victims and where the administrative cost of disbursing restitution payments to multiple victims involves a significant cost, any restitution payment received by a probation department shall be forwarded to multiple victims when it is cost-effective to do so, but in no event shall restitution disbursements be delayed beyond 180 days from the date the payment is received by the probation department.


Penal Code §1202.4(f)(3) states:


The restitution order shall be prepared by the sentencing court, shall identify each victim and each loss to which it pertains, and shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct including...(B) Medical expenses.


Penal Code §1202.4—Restitution Fines, Hearings, Losses, Expenses, Interest Rate


(a)(1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.

(2) Upon a person being convicted of any crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464.

(3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following:

(A) A restitution fine in accordance with subdivision (b).

(B) Restitution to the victim or victims, if any, in accordance with subdivision (f), which shall be enforceable as if the order were a civil judgment.

(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.

(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony, and shall not be less than one hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is convicted of a misdemeanor.

(2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.

(c) The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court may specify that funds confiscated at the time of the defendant’s arrest, except for funds confiscated pursuant to Section 11469 of the Health and Safety Code, be applied to the restitution fine if the funds are not exempt for spousal or child support or subject to any other legal exemption.

(d) In setting the amount of the fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) or one hundred-dollar ($100) minimum, the court shall consider any relevant factors including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered any losses as a result of the crime, and the number of victims involved in the crime. Those losses may include pecuniary losses to the victim or his or her dependents as well as intangible losses, such as psychological harm caused by the crime. Consideration of a defendant’ s inability to pay may include his or her future earning capacity. A defendant shall bear the burden of demonstrating his or her inability to pay. Express findings by the court as to the factors bearing on the amount of the fine shall not be required. A separate hearing for the fine shall not be required.

(e) The restitution fine shall not be subject to penalty assessments as provided in Section 1464, and shall be deposited in the Restitution Fund in the State Treasury.

(f) Except as provided in subdivision (q), in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. The court may specify that funds confiscated at the time of the defendant’s arrest, except for funds confiscated pursuant to Section 11469 of the Health and Safety Code, be applied to the restitution order if the funds are not exempt for spousal or child support or subject to any other legal exemption.


DUI Defendant may have to pay more in criminal case if repairs exceed value

Under P.C. 1202.4(f), a restitution order may be significantly higher where it is based upon the cost of repair as opposed to replacement value. Thus, an order for $4,400.00 of repairs was affirmed even though replacement value was only $3,000.00. In re Dina V (2007) 151 Cal.App.4th 486. Cf. People v. Yanez (1995) 38 Cal.App.4th 1622.


DUI Restitution can be ordered at anytime


People v. Rubio (2007) (4th District COP, Div. 1 – Docket No.D048426, WL 1248495) (Unpublished), held that the absence of a restitution order is illegal and therefore can be corrected at any time. If no restitution was ordered due to compelling and/or extraordinary reasons, the Court must expressly state that on the record. In addition, it has been held that restitution is not a proper subject for plea bargains and that a victim’s right to receive restitution cannot be circumscribed by a plea bargain. People v. Valdez (1994) 24 Cal.App.4th 1194,1203.

P.C. §1202.4 does not preclude the entry of a civil judgment for economic losses that may also be the subject of the criminal restitution order. Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438.


Bankruptcy does not discharge DUI Defendant

Restitution orders are not dischargeable in bankruptcy. (11 U.S.C. §1328(a)). And a probation term prohibiting any attempt at a bankruptcy discharge of a restitution order is a valid term according to a Superior Court Appellate Department opinion. People v. Warnes (1992) 10 Cal.App.4th Supp. 35.