[SDCBC] Bicyclists Rights in Court

[Richard Duquette]

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>Bicyclists Rights in Court
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>Bicyclists who fall victim to criminal conduct 
>have the right to be heard and compensated. Most 
>criminal defense attorneys would agree, victims 
>of crimes should be fairly compensated for their 
>losses. In fact, any seasoned defense attorney 
>knows to work with victims to recover losses, in 
>hopes of mitigating his client’s sentence and to demonstrate remorse.
>
>You are likely to end up in the criminal court 
>if you or your family is the victim of a 
>vehicular homicide, hit and run or hit by a 
>drunk driver. Since athletes are often 
>unfamiliar in a formal court setting, I’ve 
>decided to outline a brief list of your rights, 
>to help minimize your stress, anxiety and frustration.
>
>First of all, you have the right to be heard in 
>court. You can walk up to the podium and explain 
>your losses – emotional and monetary. You can 
>even comment on sentencing of the defendant. 
>Knowing this, defense attorneys will often 
>cooperate with you early on in the case. Being 
>heard, or apologized to in open court is healing. (Penal Code §1191.1)
>
>You also have the right to be notified by the 
>District Attorney and Probation Department (they 
>prosecute and compile factual history of loss – 
>respectively) of the status of a court 
>proceeding, especially if you’re subpoenaed. (Penal Code §679.02)
>
>You’re also entitled to the return of your 
>bicycle or other property which was needed as evidence.
>
>Moreover, you have the right to be informed by 
>the prosecutor of the final disposition of the 
>case and be provided with information concerning 
>the victim’s right to civil recovery. This 
>includes compensation from the State Restitution Fund. (Penal Code §1191.2)
>
>What losses are compensable?
>
>See Penal Code §1202.4 for a list of recoverable 
>economic damages (Note: This does not include 
>pain and suffering damages, which are recoverable in a personal injury case.)
>
>[]
>  Medical Bills
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>  Lost Wages
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>  Burial Costs
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>  Damages to your bicycle and clothes
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>  Attorney fees and interest generated to obtain 
> a recovery should the insurance
>     company delay settlement. (People v. Fulton (2003) 109 Cal App 4th 876)
>
>Once you obtain a Judges court order setting the 
>amount of restitution, promptly ask the court to 
>order the defendant to submit to an immediate 
>examination of his assets, (using Judicial 
>counsel form CR115). See Code of Civil Procedure 
>§708 110-205. Concealment of assets is an additional crime (Penal Code §155.5).
>
>Remember, threats of bankruptcy are just that, 
>idle threats. Bankruptcy has no effect on the 
>courts restitution order. 11USC 523(a)(7) and sections1301-1330.
>
>Further, inability to pay restitution may not be 
>considered in determining the restitution order.
>
>You can now enforce the court order!
>
>A criminal restitution order is a civil 
>judgment. This is a lot quicker than civilly 
>litigating – which can take over a year to win. 
>(Again, it must be emphasized this does not 
>include damages for pain and suffering.) Post 
>judgment collection tools like a writ of 
>execution apply. Another tool is wage 
>garnishment. (Penal Code §1262.4 and §1214(b).
>
>Watch out for the crossover between the civil 
>and criminal case. If you sign a civil 
>settlement release of liability, make sure to 
>exempt your criminal restitution rights. The 
>next question is whether the criminal defendant 
>should get a credit from the civil personal 
>injury settlement in order to offset the 
>criminal restitution order? There is a split of 
>legal opinions on this issue. Conversely, the 
>insurance company should not get credit for a 
>criminal restitution order, because the 
>rehabilitative and deterrent effect of the 
>criminal debt to society distinguishes the two 
>forms of civil and criminal relief. See in re: 
>Tommy A. (2005) 131 Cal App 4th 1580.
>
>The moral to this article is uplifting:
>
>Criminal cases emotionally tax the athlete 
>victim, but there is a silver lining in the 
>process because criminal cases usually resolve 
>in 100 days – well before a civil case. The net 
>benefit to the victim of a criminal restitution 
>order is to promptly secure your rights. This 
>will often prompt the stubborn insurance 
>companies to quickly pay up
.or subject their 
>insured to a criminal restitution order, 
>attorney fees and an empowered victim
. Maybe 
>even jail, if the defendant can pay - but refuses.
>
>By way of example – in one of my recent cases an 
>insurance company failed to promptly pay for the 
>damages caused by their drunk driver client – 
>until a civil punitive damages motion was 
>granted at the same time a criminal restitution 
>hearing was set. With judgment day nearing on 
>two fronts (the civil and criminal courts), the 
>insurance company’s delay tactics finally caught 
>up with them and forced a premium settlement in 
>order to end the disastrous exposure to their insured driver.
>
>So, good guys and ladies can and do win – with 
>the help of an experienced trial lawyer.
>
>Ride Safe – Ride Strong!
>
>
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Richard L. Duquette
Criminal Defense &
Bicycle Injury Lawyer since 1983
Carlsbad, CA
760-730-0500
www.911law.com  
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