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Restitution Matters in DUI Cases

Restitution Matters in DUI Cases

The Remedy of Restitution Defined in California DUI Cases 

Definition of Restitution

Restitution is an act of making good, or giving the equivalent for, any loss, damage or injury; indemnification.

Restoration of status quo is an amount which would put the plaintiff in as good a position as he would have been if no contract had been made and restores to plaintiff value of what he parted with in performing the contract.

A person who has been unjustly enriched at the expense of another is required to make restitution to the other.

Restatement of Law, Restitution, Sec. 1 Blacks Law Dictionary.

Restitution in Criminal Law and Civil Law (Torts)

In criminal law, specifically DUI accident with injury cases, criminal courts routinely impose payment of restitution by the defendant to the victim as a condition of a probationary sentence.

In such cases, courts render restitution orders that require the defendant to pay the victim and/or victims a predetermined 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 criminal conduct. In most instances, the assigned prosecutor or his/her respective agency will compile bills, invoices and other documentary evidence of the victim’s out-of-pocket 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 through the issue of damages. However, in civil law, restitution is expanded to include damages resulting from economic and non-economic losses. Damages for pain and suffering, loss of consortium, loss of earning capacity and other civil remedies expand the scope of restitution beyond just out-of-pocket economic losses. In criminal law, restitution is generally limited to out-of-pocket economic losses which the victim can establish through documentary evidence. A victim who incurs professional fees (i.e., accountants, lawyers, investigators, etc.) to assist the victim in establishing the amount of the actual loss or out of pocket expenses incurred as a result the loss, harm or injury is entitled to recover those fees as part of the total restitution amount owed.

The Victim’s Right to Restitution

A California Constitutional Right to Restitution

Generally, 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).

The 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. [Emphasis added.]

The Defendant’s Right to Contest the Amount of Restitution and The Right To An Evidentiary Hearing

By pleading guilty the defendant does not waive his right to contest restitution. In People v. Escobar (1991) 235 Cal.App.3d 1504, the court held that, to be valid, a condition of probation must serve a purpose specified in Pen. C. §1203.1. For a restitution order to have such an effect, it must directly relate to the crime the defendant has committed.

The Right to an Evidentiary Hearing

Penal Code §1202.4(f)(1) states:

The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion.

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.

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