Sunday, September 29, 2013

Is Restitution Mandatory in Hit and Run and DUI Cases?

Some people believe that just because a person is involved in a hit and run or DUI case that restitution is always required, not so.  In California, a conviction of a hit-and-run or misdemeanor DUI offense does not necessarily  establish responsibility for the accident in which defendant was involved.  Courts have decided that in a hit-and-run case the crime is the running, not the hitting. However, even though the crime did not cause the loss, the court may order restitution as a condition of probation, at least when “there is no question as to defen-dant’s responsibility for the loss.” Said the Court in People v Carbajal (1995) 10 C4th 1114, 1124 where the defendant conceded liability in hit-and-run accident and agreed to repay the damages caused in the accident.

Restitution is appropriate in these cases because it is reasonably related to the crime of which defendant was convicted and to the goal of probation to deter future criminality. According to a local Bakersfield DUI Lawyer who has fought and won these cases, it is particularly important for the court to:

1. Notify defendant that the court may consider requiring restitution as a condition of probation; and
2. Give defendant “a meaningful opportunity to controvert the information” that the court considers.
The Fourth District of the Court of Appeal in California has applied the reasoning of Carbajal in a nonprobation case. In that case the accused criminal defendant was convicted of felony hit-and-run resulting in death, sentenced to prison, and ordered to pay funeral expenses as direct restitution to victim’s family.

Whatever the Court's decision in a particular case, the following are guidelines that Judges use in cases involving DUI and hit and run related accidents:  1.  In the absence of a plea agreement, restitution in a hit-and-run case or misdemeanor DUI case (Vehicle Code §23152) should probably be ordered only when it is obvious or undisputed that defendant caused the accident. 2.  Convictions of felony DUI causing injury (CA Vehicle Code §23153) pose no causation problems and should be handled as mandatory restitution cases.

In some instances a Court may order that the defendant serve prison and pay restitution for a drunk driving case.  In those cases the state of California will secure the payments through the person's wages, tax refunds and other government aid.

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