[SDCBC] Bicyclists Rights in Court

[Richard Duquette]

>>
>>Bicyclists Rights in Court
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>>[]
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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.)
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>>[]
>>  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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>>Antivirus, version of virus signature database 3158 (20080604) __________
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>><http://www.eset.com>http://www.eset.com
>Richard L. Duquette
>Criminal Defense &
>Bicycle Injury Lawyer since 1983
>Carlsbad, CA
>760-730-0500
>www.911law.com

Richard L. Duquette
Criminal Defense &
Bicycle Injury Lawyer since 1983
Carlsbad, CA
760-730-0500
www.911law.com  
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