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<blockquote type=cite class=cite cite=""><h1><font size=6 color="#660033">
<b>Bicyclists Rights in Court</b></font></h1><font size=2><br><br>
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</font></blockquote><br><br>
<br><br>
<br>
<blockquote type=cite class=cite cite=""><font size=2>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.<br><br>
You are likely to end up in the criminal court if you or your family is
the <b>victim of a vehicular homicide, hit and run or hit by a drunk
driver</b>. 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.<br><br>
First of all, <b><i>you have the right to be heard in court</i></b>. 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)<br><br>
<b><i>You also have the right to be notified</i></b> by the
<b><i>District Attorney</i></b> and <b><i>Probation Department</i></b>
(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)<br><br>
You’re also <b><i>entitled to the return of your bicycle or other
property</i></b> which was needed as evidence.<br><br>
Moreover, you have the <b><i>right to be informed by the prosecutor of
the final disposition of the case</i></b> and be <b><i>provided with
information concerning the victim’s right to civil recovery.</i></b> This
includes compensation from the State Restitution Fund. (Penal Code
§1191.2)<br><br>
</font><font size=2 color="#800000"><b>What losses are
compensable?</b></font><font size=2><br><br>
See Penal Code §1202.4 for a list of recoverable economic damages (Note:
This does <b><i>not include pain and suffering damages</i></b>, which are
recoverable in a personal injury case.)<br><br>
<img src="http://www.911law.com/images/BD14755_.gif" width=12 height=12 alt="[]">
<b>Medical Bills<br><br>
<img src="http://www.911law.com/images/BD14755_.gif" width=12 height=12 alt="[]">
Lost Wages<br><br>
<img src="http://www.911law.com/images/BD14755_.gif" width=12 height=12 alt="[]">
Burial Costs<br><br>
<img src="http://www.911law.com/images/BD14755_.gif" width=12 height=12 alt="[]">
Damages to your bicycle and clothes</b><br><br>
<img src="http://www.911law.com/images/BD14755_.gif" width=12 height=12 alt="[]">
<b> Attorney fees and interest generated to obtain a recovery should
the insurance<br>
company delay settlement. (<i>People v. Fulton</i>
(2003) 109 Cal App 4th 876)</b><br><br>
Once you obtain a Judges court order setting the amount of restitution,
promptly ask the court to order the defendant to submit to an
<b><i>immediate examination of his assets</i></b>, (using Judicial
counsel form CR115). <b>See Code of Civil Procedure §708 110-205.
Concealment of assets is an additional crime (Penal Code
§155.5).</b><br><br>
Remember, threats of bankruptcy are just that, <b>idle</b> threats.
<b>Bankruptcy has no effect on the courts restitution order. 11USC
523(a)(7) and sections1301-1330.<br>
</b><br>
<b>Further, inability to pay restitution may not be considered in
determining the restitution order.<br>
</b><br>
You can now <b><i>enforce the court order!</i></b><br>
<br>
A criminal restitution order is a <b>civil judgment</b>. This is a lot
quicker than civilly litigating – which can take over a year to win.
(Again, it <b><u>must be emphasized this does not include damages for
pain and suffering</u></b>.) Post judgment collection tools like a writ
of execution apply. Another tool is wage garnishment. (Penal Code §1262.4
and §1214(b).<br><br>
Watch out for the <b><i>crossover between the civil and criminal
case</i></b>. If you sign a civil settlement release of liability, make
sure to <b><i>exempt your criminal restitution rights</i></b>. 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.<br><br>
</font><font size=2 color="#800000"><b>The moral to this article is
uplifting:<br>
</b></font><font size=2><br>
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.<br><br>
By way of example – in one of my <b><u>recent cases an insurance company
failed to promptly pay for the damages caused by their drunk driver
client</u></b> – until a <b>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
<u>premium settlement</u> in order to end the disastrous exposure to
their insured driver.</b><br><br>
So, good guys and ladies can and do win – with the help of an
<b><i>experienced</i></b> trial lawyer.<br><br>
<b>Ride Safe – Ride Strong!<br>
</b></font><br><br>
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</blockquote>
<x-sigsep><p></x-sigsep>
Richard L. Duquette<br>
<b><i>Criminal Defense &<br>
Bicycle Injury Lawyer since <font color="#FF0000">1983<br>
</i></b></font>Carlsbad, CA<br>
<b>760-730-0500<br>
<a href="http://www.911law.com/" eudora="autourl">www.911law.com</a></b>
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