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WHEN RESTITUTION IS ORDERED AS PART OF A DUI CONVICTION

Most Californians are aware that a DUI conviction costs more than just attorney fees and the fines and fees levied by the court. After a DUI conviction, insurance rates are bound to increase, there are costs associated with the installation and maintenance of an Ignition Interlock Device, DMV fees, and so on. But one cost that is sometimes associated with a DUI is rarely considered: Restitution. When a person driving under the influence causes any damage or injury, whether because the driver caused an accident or just ran into someone’s fence, that driver, if convicted on the DUI, will be ordered to pay restitution and restitution fees.

Depending on the severity of the injuries or damage, restitution can carry a hefty price tag. When injuries are involved, the court will consider the victim’s calculation of damages and as long as there is some reasonableness, will order restitution in the amount claimed by the victim. Thus, someone who was injured by a drunk driver may claim not only losses suffered due to the immediate injuries, but also future economic losses. For example, if the injuries prevent the victim from future earnings, the restitution order may include a calculation of lost future earnings, which if the victim is younger, could be considerable. What the restitution order cannot include are losses for pain and suffering. However, these losses are recoverable in a civil action.

In most cases, the DUI driver’s insurance will pay for the damages, but only up to liability limits of the policy. More often than not, the DUI driver’s insurance company will settle with the victim/plaintiff rather than take the case to a civil trial. This is a civil settlement and is considered separate from the criminal restitution order, but with usually with offsets to the restitution. What that means in practical terms can be illustrated by this example:

Vanessa ran a stop sign, crashing into a vehicle at the intersection. The two occupants of the other car, a husband and wife, were both injured and required hospitalization. At the scene of the collision, Vanessa was arrested for DUI, causing injury. (Veh. Code §23153(b). She pled no contest to the charge and stipulated that she would pay restitution to both victims, with the amount of restitution to be determined at a separate restitution hearing. At the restitution hearing, the court ordered Vanessa pay the victims $185,600 in economic losses as claimed by the victims. Concurrent to the criminal proceedings, the victims had filed a civil suit against Vanessa in the amount of $500,000, for economic losses and for pain and suffering. Vanessa’s automobile insurer negotiated a payout of $150,000 to the victims. The payout was a lump sum without any itemization. How much of the $150,000 settlement payment offsets the restitution order of $185,600, for which Vanessa must personally pay? You might think all $150,000, leaving Vanessa with only a $35,6000 restitution bill. But you would be wrong. Because the settlement did not itemize how much was for economic damages and how much covered pain and suffering damages, the court could refuse to offset any of the restitution order by the amount paid in the civil settlement, because criminal restitution does not cover pain and suffering. If, on the other hand, Vanessa’s DUI defense attorney was careful to make sure the civil settlement clearly itemized the payout, Vanessa could return to the criminal court and request an offset to the restitution order for economic damages. For example, if the settlement clearly itemized $100,000 for economic losses and $50,000 for pain and suffering, Vanessa could ask for an offset of $100,000, thus reducing her personal restitution liability to $85,600.

Whenever a restitution order attaches to a DUI conviction, it is important for the DUI defense attorney to communicate with the civil attorney handling the insurance matter. This doesn’t always happen, and DUI defendants like Vanessa find themselves without the appropriate offset to the restitution order.

Restitution is just one example of the many twists and tuns a DUI case may take, which require experience and an intricate understanding of DUI law. Orange County DUI defense attorney, with over 25 years representing DUI clients, is intimately familiar with the nuances of DUI law and offers his clients a comprehensive and expert defense. He offers a free consultation to explore your DUI defense options. You may reach him by calling his office at 949-474-8008 or by email at bill@williamweinberg.com.

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