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.)
Damages to your bicycle and clothes
Attorney fees and interest generated to obtain a recovery should the insurance company delay settlement. (People v. Fulton (2003) 109 Cal App 4th 876)
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.