An Overview of Criminal Restitution in California: In general, victim
restitution refers to a victim's right to recover any economic losses
that he or she incurred as the result of another person's criminal
wrongdoing. In California drunk driving accident and injury cases,
criminal courts must impose payment of restitution made to a victim by
the defendant, usually as part of probation proceedings, or a condition
thereof. In these cases, the term "victim" is not limited to the person
who suffered a direct or threatened physical, psychological, or
financial harm. For example, the family of the individual who suffered a
loss, or even a business, government or other entity who has suffered a
loss due to another person's criminal acts may recover.
California Superior Courts therefore order restitution required under the law by compelling a defendant to pay the victim a specific amount of money that is determined and calculated by the parties or their authorized representatives. To the extent possible, the restitution order must 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." For instance, it has been held that the defendant must pay for the value of damaged property when repair is possible. Other recoverable losses include: medical expenses, mental health expenses or counseling, wages or lost profits, interest and reasonable attorney's fees. Basically, California law provides that victims of crime are entitled to recover "the full amount for any reasonable" losses or expenses. So how do you prove the losses?
Evidence of losses will likely include financial statements, bills, invoices, testimony and any other out-of-pocket losses victim incurred as a result of the defendant's DUI-related crime, which is documented. Because the crime victim restitution statute uses the language "including, but not limited to" the enumerated losses, a trial court may compensate a crime victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior even if not specifically enumerated in the restitution statute. Thus, in consonance with the foregoing provision and principles of law, courts have held that a defendant who pled guilty to a felony hit-and-run from an accident resulting in the death to another was required to pay funeral expenses as direct restitution to the family of the victim because, under the restitution statute, funeral expenses were a loss incurred as a result of the commission of a crime for which the defendant was convicted, inasmuch as a defendant's involvement in an accident causing serious injury or death was an element of his felony hit-and-run offense. Effectively, the well-established goal of restitution outlined by California courts is to make the victim whole again. In order to accomplish this goal, there are several things to watch out for when attempting to obtain criminal restitution for a client who has been injured by a drunk driver. Here are the basics.
How Criminal Restitution Works:10 Practice Tips
1. Prosecutors are not allowed to reduce the amount of restitution during a plea bargain, because they are not permitted to waive any claims on the victim's behalf. Additionally, if a charge related to a victim's loss is dismissed on the front end, a Harvey Waiver may be used. If signed, a Harvey Waiver entitles the victim to restitution on any dismissed count connected with the case.
2. One California case held, in an unpublished opinion, held that the absence of a restitution order is illegal and therefore can be corrected at any time. If no restitution was ordered due to compelling and or extraordinary reasons, the Court must expressly state that on the record.
3. A victim is entitled to collect full restitution from the defendant, even if the victim is separately reimbursed by an insurance payment. However, if it is the defendant's insurance company that pays the victim, the defendant is entitled to have the insurance payment deducted from his or her remaining victim restitution obligation.
4. If the full amount of recovery is not known at the time of the defendant's sentencing the court may include a provision that victim compensation will be ordered based on an amount to be determined. The full amount will then be determined during a restitution hearing.
5. Regardless of whether the exact amount of victim restitution is set at either sentencing or later at a restitution hearing, if the victim discovers additional losses after the restitution order is made, it can be amended as appropriate.
6. At the hearing, the victim has the burden of proving that the defendant's criminal conduct substantially caused the victim's losses. The defendant's conduct doesn't have to be the only factor that contributed to the loss, as long as the conduct was at least a substantial factor. Additionally, the victim must prove that the amount of compensation he or she is requesting is proper. The standard of proof is a preponderance of the evidence.
7. If the victim doesn't have documentary evidence described in the previous section, he or she may simply explain what losses the victim believes they incurred. If the defendant disputes this amount, he or she then has the burden of proving that the requested amount is inappropriate, perhaps by through defendant's own estimates.
8. After determining how much victim restitution or compensation a defendant will be required to pay, that payment becomes a part of the defendant's probation sentence. Depending on
Article Source: http://EzineArticles.com/6649522
California Superior Courts therefore order restitution required under the law by compelling a defendant to pay the victim a specific amount of money that is determined and calculated by the parties or their authorized representatives. To the extent possible, the restitution order must 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." For instance, it has been held that the defendant must pay for the value of damaged property when repair is possible. Other recoverable losses include: medical expenses, mental health expenses or counseling, wages or lost profits, interest and reasonable attorney's fees. Basically, California law provides that victims of crime are entitled to recover "the full amount for any reasonable" losses or expenses. So how do you prove the losses?
Evidence of losses will likely include financial statements, bills, invoices, testimony and any other out-of-pocket losses victim incurred as a result of the defendant's DUI-related crime, which is documented. Because the crime victim restitution statute uses the language "including, but not limited to" the enumerated losses, a trial court may compensate a crime victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior even if not specifically enumerated in the restitution statute. Thus, in consonance with the foregoing provision and principles of law, courts have held that a defendant who pled guilty to a felony hit-and-run from an accident resulting in the death to another was required to pay funeral expenses as direct restitution to the family of the victim because, under the restitution statute, funeral expenses were a loss incurred as a result of the commission of a crime for which the defendant was convicted, inasmuch as a defendant's involvement in an accident causing serious injury or death was an element of his felony hit-and-run offense. Effectively, the well-established goal of restitution outlined by California courts is to make the victim whole again. In order to accomplish this goal, there are several things to watch out for when attempting to obtain criminal restitution for a client who has been injured by a drunk driver. Here are the basics.
How Criminal Restitution Works:10 Practice Tips
1. Prosecutors are not allowed to reduce the amount of restitution during a plea bargain, because they are not permitted to waive any claims on the victim's behalf. Additionally, if a charge related to a victim's loss is dismissed on the front end, a Harvey Waiver may be used. If signed, a Harvey Waiver entitles the victim to restitution on any dismissed count connected with the case.
2. One California case held, in an unpublished opinion, held that the absence of a restitution order is illegal and therefore can be corrected at any time. If no restitution was ordered due to compelling and or extraordinary reasons, the Court must expressly state that on the record.
3. A victim is entitled to collect full restitution from the defendant, even if the victim is separately reimbursed by an insurance payment. However, if it is the defendant's insurance company that pays the victim, the defendant is entitled to have the insurance payment deducted from his or her remaining victim restitution obligation.
4. If the full amount of recovery is not known at the time of the defendant's sentencing the court may include a provision that victim compensation will be ordered based on an amount to be determined. The full amount will then be determined during a restitution hearing.
5. Regardless of whether the exact amount of victim restitution is set at either sentencing or later at a restitution hearing, if the victim discovers additional losses after the restitution order is made, it can be amended as appropriate.
6. At the hearing, the victim has the burden of proving that the defendant's criminal conduct substantially caused the victim's losses. The defendant's conduct doesn't have to be the only factor that contributed to the loss, as long as the conduct was at least a substantial factor. Additionally, the victim must prove that the amount of compensation he or she is requesting is proper. The standard of proof is a preponderance of the evidence.
7. If the victim doesn't have documentary evidence described in the previous section, he or she may simply explain what losses the victim believes they incurred. If the defendant disputes this amount, he or she then has the burden of proving that the requested amount is inappropriate, perhaps by through defendant's own estimates.
8. After determining how much victim restitution or compensation a defendant will be required to pay, that payment becomes a part of the defendant's probation sentence. Depending on
Article Source: http://EzineArticles.com/6649522
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