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BICYCLISTS RIGHTS IN COURT
 Bicyclists
who fall victim to criminal conduct have the
right to be heard and compensated. Most criminal
defense attorneys would agree, victims of crimes
should be fairly compensated for their losses.
In fact, any seasoned defense attorney knows to
work with victims to recover losses, in hopes of
mitigating his client’s sentence and to
demonstrate remorse.
You are likely to end up in the criminal court
if you or your family is the victim of a
vehicular homicide, hit and run or hit by a
drunk driver. Since athletes are often
unfamiliar in a formal court setting, I’ve
decided to outline a brief list of your rights,
to help minimize your stress, anxiety and
frustration.
First of all, you have the right to be
heard in court. You can walk up to the
podium and explain your losses – emotional and
monetary. You can even comment on sentencing of
the defendant. Knowing this, defense attorneys
will often cooperate with you early on in the
case. Being heard, or apologized to in open
court is healing. (Penal Code §1191.1)
You also have the right to be notified by
the District Attorney and Probation
Department (they prosecute and compile
factual history of loss – respectively) of the
status of a court proceeding, especially if
you’re subpoenaed. (Penal Code §679.02)
You’re also entitled to the return of
your bicycle or other property which
was needed as evidence.
Moreover, you have the right to be
informed by the prosecutor of the final
disposition of the case and be
provided with information concerning the
victim’s right to civil recovery. This
includes compensation from the State Restitution
Fund. (Penal Code §1191.2)
What losses are compensable?
See Penal Code §1202.4 for a list of recoverable
economic damages (Note: This does not
include pain and suffering damages,
which are recoverable in a personal injury
case.)
Once you obtain a
Judges court order setting the amount of
restitution, promptly ask the court to order the
defendant to submit to an immediate
examination of his assets, (using
Judicial counsel form CR115). See Code
of Civil Procedure §708 110-205. Concealment of
assets is an additional crime (Penal Code
§155.5).
Remember, threats of bankruptcy are just that, idle threats. Bankruptcy
has no effect on the courts restitution order.
11USC 523(a)(7) and sections1301-1330.
Further, inability to pay restitution
may not be considered in determining the
restitution order.
You can now enforce the court order!
A criminal restitution order is a civil
judgment. This is a lot quicker than
civilly litigating – which can take over a year
to win. (Again, it must
be emphasized this does not include damages for
pain and suffering.) Post
judgment collection tools like a writ of
execution apply. Another tool is wage
garnishment. (Penal Code §1262.4 and §1214(b).
Watch out for the crossover between
the civil and criminal case. If
you sign a civil settlement release of
liability, make sure to exempt your
criminal restitution rights. The
next question is whether the criminal defendant
should get a credit from the civil personal
injury settlement in order to offset the
criminal restitution order? There is a split of
legal opinions on this issue. Conversely, the
insurance company should not get credit for a
criminal restitution order, because the
rehabilitative and deterrent effect of the
criminal debt to society distinguishes the two
forms of civil and criminal relief. See in re:
Tommy A. (2005) 131 Cal App 4th 1580.
The moral to this article is uplifting:
Criminal cases emotionally tax the athlete
victim, but there is a silver lining in the
process because criminal cases usually resolve
in 100 days – well before a civil case. The net
benefit to the victim of a criminal restitution
order is to promptly secure your rights. This
will often prompt the stubborn insurance
companies to quickly pay up….or subject their
insured to a criminal restitution order,
attorney fees and an empowered victim…. Maybe
even jail, if the defendant can pay - but
refuses.
By way of example – in one of my recent
cases an insurance company failed to promptly
pay for the damages caused by their drunk driver
client – until a civil
punitive damages motion was granted at the same
time a criminal restitution hearing was set.
With judgment day nearing on two fronts (the
civil and criminal courts), the insurance
company’s delay tactics finally caught up with
them and forced a premium
settlement in order to end the disastrous
exposure to their insured driver.
So, good guys and ladies can and do win – with
the help of an experienced trial
lawyer.
Ride Safe – Ride Strong!
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