Restitution is a big issue. What restitution means is related to a DUI is if you have a DUI matter. You end up getting in some accident, and somebody either gets hurt, or there is property damage; you will be responsible for that if the accident is your fault. DUI causing injury is covered under California Vehicle Code 23153(b).
So, the prosecutors feel that it's part of their job to make sure that they get the victims of an accident of any property damage or injury – whatever it is they lost – whether it be their car replaced or whether they lose work – whatever makes sense and whatever they are out of pocket is going to be the restitution that the prosecutors will seek for them.
Unfortunately, I've done many of these DUI restitution cases over the last twenty-five years. The bottom line is that almost always, the law and the rules related to restitution in DUIs will be for the benefit of the individual who has been wronged or hurt.
The only way you're going to get out of paying restitution is if you can make argument number one, that they didn't have any out-of-pocket expenses. A personal injury where people claim pain and suffering, you can't get that as restitution in a criminal case. But if you lost time off work, for example, you could certainly get that.
So, one way would be to say no; the restitution is not appropriate because it's a situation where the defendant did not cause the accident. That's another powerful argument to avoid paying restitution in a DUI case.
In other words, sometimes someone gets in an accident. Still, whatever injury occurs to the person, or whatever property damage is caused by either that person's actions or by the actions of a third party, has nothing to do with the defendant.
So, the critical issue is whether a defendant in a DUI case is a substantial factor in damage, property damage, or a significant aspect of an injury-type situation. Once you have that question, you can start to answer whether or not the restitution will be appropriate in a particular DUI case.
How do they Handle Restitution Hearings in a DUI Case?
Even though they may be at fault for the accident, property damage, or injury, the defendant is still entitled to a hearing as it relates to restitution. So, the judge will sit there and listen to all the evidence.
See precisely what the alleged victim is claiming they are out of pocket. Then the judge will make a ruling at the end as to what, if any, restitution will be awarded to the particular individual. So, evidence will be presented. You can undoubtedly give counter-evidence. The defendant can testify.
The person who is injured can testify. Any witnesses can testify, and then like I said, in the end, the judge will decide on exactly how much restitution is owing in a DUI case.
Then the next question will be, okay, what if the person doesn't have all of the restitution? For example, it's a $10,000.00 restitution order, but the defendant doesn't have $10,000.00 to pay that.
Restitution Payments Through Probation Department
Then typically, what the court will do is order them to pay it through the probation department if it's a felony. The probation department will determine how much money they have and make them make monthly payments based on their income towards the restitution.
If, on the other hand, it's not a felony and the probation department can't monitor it, then the court is going to watch the restitution award in a DUI case. The court will figure out whether the defendant is making reasonable efforts to pay back the restitution they caused in the DUI case. Suppose the defendant is ignoring their responsibilities to pay the refund. In that case, the court can find the defendant in violation of their probation and punish the person for not paying the restitution to the victim.
This is something you're going to want to talk to your attorney about, and let your attorney handle the restitution issue related to a DUI case so you can end up with the best possible result.