Restitution is a big issue. Basically, what restitution means is it relates to a DUI is, if you have a DUI matter and you end up getting in some sort of an accident and somebody either gets hurt or there is property damage, you are going to 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 any 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 a lot of these DUI restitution cases over the last twenty-five years. The bottom line is, almost always the law and the rules related to restitution in DUIs is going to 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 the argument number one, that they really didn’t have any out of pocket expenses. Personal injury where people are claiming 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 to no, the restitution is not appropriate because it’s a situation where the accident was not caused by the defendant. That’s another powerful argument to avoid paying restitution in a DUI case.
In other words, sometimes someone gets in an accident, but whatever injury occurs to the person or whatever property damage is caused by either that person’s own actions or by the actions of a third-party having nothing to do with the defendant.
So, the key issue is going to be, is a defendant in a DUI case a substantial factor in damage, property damage, or a substantial factor in an injury-type situation. Once you have that question, then you can start to answer whether or not the restitution is going to be appropriate in a particular DUI case.
Basically, the defendant – even though they may be at fault for the accident, property damage or injury – is still entitled to a hearing as it relates to restitution. So, the judge will sit there and listen to all the evidence.
See exactly what the alleged victim is claiming they are out of pocket and then the judge will make a ruling at the end as to what, if any, restitution is going to be awarded to the particular individual. So, evidence will be presented. You can certainly present 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 make the decision on exactly how much restitution is owing in a DUI case.
Then the next question is going to be, okay, what if the person doesn’t have all of the restitution? For example, let’s say it’s a $10,000.00 restitution order but the defendant doesn’t have $10,000.00 to pay that.
Then typically what the court will do is order them to pay it through the probation department if it’s a felony and the probation department will just 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 it can’t be monitored by the probation department, then the court is going to monitor the restitution award in a DUI case and the court will figure out whether the defendant is making reasonable efforts to pay back the restitution they caused in the DUI case, and if the defendant is just ignoring their responsibilities to pay the restitution, the court can find the defendant in violation of their probation and could punish the person for not paying the restitution to the victim.
This is definitely 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.