- Richard L. Duquette
Cyclists' Rights in Court
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 is hit by a drunk driver. Bicyclists who fall victim to criminal conduct have the right to be heard and compensated. Most criminal defense attorneys would agree that 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.
Since athletes are often unfamiliar with a formal court setting, I've decided to outline a brief list of your rights to help minimize your stress, anxiety and frustration.
Your rights in court
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.
You also have the right to be notified by the district attorney and probation department of the status of a court proceeding, especially if you're subpoenaed. You're also entitled to the return of your bicycle or other property which was needed as evidence.
Finally, 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.
Your right to compensation
The law affords victims a number of legitimate claims for recoverable economic damage, including:
Damages to your bicycle and clothes
Attorney fees and interest generated to obtain a recovery should the insurance company delay settlement.
It is important to note that this list doesn't include pain and-suffering damages. Those are recoverable through a personal injury case.
Once you obtain a judge's court order setting the amount of restitution, your attorney should promptly ask the court to order the defendant to submit to an immediate examination of his assets. Bankruptcy has no effect on the courts restitution order--inability to pay restitution may not be considered in determining the restitution order. Also, concealment of assets is an additional crime.
Enforcing the court order
A criminal restitution order is a civil judgment. This is a lot faster than civilly litigating–which can take over a year to win. You can use judgment collection tools like a writ of execution or wage garnishment.
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.
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.
The silver lining
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.
So, good guys and ladies can and do win – with the help of an experienced trial lawyer.
Mr. Duquette is a local Carlsbad, California Personal Injury Trial Attorney who since 1983 has mixed law with his love of Bicycling and Surfing from Baja to Bali. He can be reached via e-mail at email@example.com and his web site is www.911law.com and phone number is (760) 730-0500.