Following a conviction for DUI, the court typically schedules a restitution hearing if an accident was involved in the case. Upon plea, judges usually require a stipulation to liability for restitution, although a specific amount is not agreed to pending the restitution hearing. Prior to the hearing, the prosecution will send a standard letter to any victim asking whether there is a claim for out of pocket expenses. If insurance has paid for any claim, typically there will be no additional claim from the victim and the issue of restitution in the criminal proceedings becomes moot and the hearing is taken off calendar.
However, if an amount is claimed, the victim is given the opportunity to attend the restitution hearing and bring proof of his or her claim. The claim may relate to damage caused to property or for medical damages in case of personal injury. In these circumstances, it is often possible to agree on an amount to be paid to the victim and stipulate to monthly payments. However, in the event of a dispute, a hearing in court is held and the judge determines what is properly owing. In compex cases, where a civil claim has been made, the criminal court may simply order that restitution be paid as per any civil judgement. It then becomes a condition of probation that the defendant meet any civil order for restitution.
A major hurdle for defendants and defense attorneys is that the criminal court dealing with the DUI case, is not bound by any insurance settlement or payment. The worse case scenario for a defendant is that the prosecutor claims full restitution to be paid by a defendant even if the victim's insurance has paid out on the claim. The defendant may be ordered to pay the full amount of the claim even though the victim has been paid by his or her own insurance company. The idea is that the victim should re-imburse his or her insurance for any amount paid. Normally, victims do not push the matter of restitution when they have already been paid by their own insurance, but if they do, they are entitiled to be paid again by the defendant. Double compensation may be the result, however unfair this may seem.
Sometimes victims are unhappy with what they have received from the defendant's insurance company. This may be reasonable or unreasonable, but the judge retains very broad discretion in criminal proceedings to award damages for losses incurred as a result of the DUI accident. Loss of wages, car rental expenses, medical expenses, property damage or even monies for mental distress may be allowed so long as they can be linked to the accident caused by the defendant.
The court should always take into account the defendant's ability to pay in ordering monthly payments as opposed to a lump sum payment of restitution. If you have been involved in a DUI accident in Los Angeles, please call a Los Angeles DUI lawyer at Gold & Witham for a free consultation.