Victims Rights?

[Supmom810]

What is the name of your state? FL
We were sitting at a red light when we were rear ended. The car that hit us didn't stop until he met with the back of our car. There were 4 people in our car and all have injuries. While the police were investigating the accident and charging the other driver, they smelled marijuana on him and his passenger and in the other vehicle and the guy admitted to getting high shortly before he hit us. This caused the police to search his car because he admitted to having more in the car. They also found baggies, scale, pills and more pot in his vehicle. He was ticketed for careless driving, as well as arrested for possession of a controlled substance with intent to sell, possession of marijuana with intent to sell, both felonies and possession of drug paraphanelia.
To top it all off he only had minimum insurance and no BIL. We have made claims to our PIP, but did not have UM (I didn't realize that I had signed to reject it when I signed our insurance forms, but we have it now) and all 4 of us are still under the care of a Dr.
I was hoping and thought that we would be contacted by the states attorneys office in regards to restitution. I have continuously called with no response. I found out that they entered into a plea deal and he was sentenced to 72 days in jail. We were never notified of any hearings and we finally got the call back after sentencing. We were told that we were not victims and therefore they did not need to notify us and that these charges were for drugs charges not an accident.
My question is, shouldn't he have been charged with DUI when all the reports states that he was under the influence of drugs? Shouldn't they have linked the accident with the drug charges seeing how that's how they found the drugs, he caused an accident? The arrest report and accident report were issued the same case number. The arrest report states there were victims but did not include the info on the front page of the report, only stated to see narrative.
How can I get a hearing for restitution? And can someone explain the law about victims rights, because clearly I do not understand it.
Thank youWhat is the name of your state?

 

[BelizeBreeze]

restitution is not at issue here since the state's attorney general was correct.

What you have to do now is file a civil suit (all of the injured) to recover costs.

Contact a personal injury attorney in your area.

 

[Supmom810]

That's what I was afraid of. More money out of our pocket in hopes that this guy gets held responsible for his actions. He's 20 and this is his 4th felony with 2-3 misdemeanors.
If they had charged him with DUI, then would we have had the right to restitution?
Thanks BelizeBreeze for your info.

 

[Kane]

Supmom, the guy who hit you doesn't have any money, and you can't get blood from a turnip.

Sorry.

 

[CdwJava]

If they had charged him with DUI, then would we have had the right to restitution?

No.

DUI is a crime against the state - not you.

Sorry.

- Carl

 

[Supmom810]

I just don't get it. Last year some guy backed in to us in a Wal-Mart parking lot. We had minimal damage and were not injured. The damage wasn't even enough for us to get repaired. He was charged with driving on a suspended license. The States Attorneys office sent me letters and the victims advocates office called a couple of times telling me to get quotes for the damage and I kept telling them that I did not wish to receive restitution and they still sent me a subpeona to attend a restitution hearing. Now when I really need it, I'm screwed.
Oh well, live and learn I guess.
Thanks all for the info.

 

[CdwJava]

I just don't get it. Last year some guy backed in to us in a Wal-Mart parking lot. We had minimal damage and were not injured. The damage wasn't even enough for us to get repaired. He was charged with driving on a suspended license. The States Attorneys office sent me letters and the victims advocates office called a couple of times telling me to get quotes for the damage and I kept telling them that I did not wish to receive restitution and they still sent me a subpeona to attend a restitution hearing. Now when I really need it, I'm screwed.
Oh well, live and learn I guess.
Thanks all for the info.

It was probably part of a settlement plea for the collision. Odd, since you can't be a victim there either. But, to avoid prosecution he probably negotiated a deal to make everyone "whole" again.

The same sort of thing could probably have been negotiated with a DUI as well - though it would have been outside the scope of victims' rights. Since you can't really be a 'victim' of DUI you likely don't have access to restitution through victims' rights legislation.

In all honesty each state is going to work this sort of thing differently. If you really want to know whether you can squeeze blood out of the DUI turnip, you will have to speak to a local attorney.

- Carl

 

[cjbrown929]

restitution is not at issue here since the state's attorney general was correct.

What you have to do now is file a civil suit (all of the injured) to recover costs.

Contact a personal injury attorney in your area.

I am not disputing your statement that "restitution is not an issue" but am curious what laws would "control" here.

I was injured in the course of a home invasion robbery and was given the opportunity to seek restititution, which was granted. Is it the intent, or lack of intent (ie accident versus intentional assault) that governs whether restitution can be ordered? Or other factors...

In my case and state (california), restitution was ordered AND I filed a civil case. My civil case resulted in a $250,000 default judgment which I expect to recover soon after hell freezes over.

Thank you for your reply.

 

[CdwJava]

It is usually a matter of whether you are a victim of the alleged crime or not. In the case of DUI YOU (as an individual) cannot be a "victim" as it is a crime against the state. If you are the victim of a home invasion robbery YOU are the victim and can then be eligible for restitution.

Every state has a restitution propgram, but the states can restrict, limit, or demand qualifiers for who is eligible to access restitution programs. Some states may permit restitution from DUI drivers that strike their vehicle - others might not be. The only way you will know about FL will be to contact an attorney and ask. Chances are, however, the state's attorney is correct and you are not eligible for restitution on the criminal end of the offense ... but, you can always sue civilly.

- Carl

 

[CdwJava]

Check the following link:

http://www.aardvarc.org/victim/states/flvic.shtml#FLRestitution

It includes a phone number and some information on FL's restitution program, including an application for restitution. From the sound of it you (or someone) MIGHT be eligible for restitution here.

- Carl

 

[Supmom810]

Carl,
Thank you for that link. It has a lot of great informatation. The assistant state attorney has asked to keep in contact with him. He has a call into the PD that handled this case as he also has some questions.
I have also been reading that if someone doesn't carry BIL in the state of Florida and they are the cause of an accident with injury, they can be forced to carry it now. Does anyone know who I would contact to make sure this happens. Although I may not be able to re-coop my expenses, it may help someone in the future.
We have decided that it would be a mute point to go after this guy civilly and need to save our money for our climbing dr. bills.
Thanks again

 

[garrula lingua]

In Ca., restitution would have been ordered by the court under the circ you describe.
See Penal Code 12
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime ....
(f) Except as provided in subdivision (q), in every case in which
a victim has suffered economic loss as a result of the defendant's
conduct, the court shall require that the defendant make restitution
to the victim or victims in an amount established by court order,
based on the amount of loss claimed by the victim or victims or any
other showing to the court. If the amount of loss cannot be
ascertained at the time of sentencing, the restitution order shall
include a provision that the amount shall be determined at the
direction of the court. The court shall order full restitution unless
it finds compelling and extraordinary reasons for not doing so, and
states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall 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, including, but not limited to, all of the
following:
... The beauty of restitution set by the criminal court is
1. It is a term of probation, so the Def will try to comply with monthly pmts set by probation or by the Judge, or as agreed.
2. It is not dischargable in bankruptcy
3. Who knows? maybe he'll hit the lottery in six years ... when the full amt isn't recoverable during probation, CA courts can issue a Judgment agin the Def in the amt still unpaid.

Usually, Prosecutors will include Restitution to anyone injured (charged or uncharged - in CA it's called a 'Harvey' waiver) whereby the Def agrees to admit liability for restitution as part of the plea bargain.
Even if the Pros didn't request restitution, it could be ordered by the Court, as long as the court found a nexus (connection) between the Def's conduct and the victim's damage.

Even after a sentence is pronounced, the issue of restituion can still be considered by the Court, at the request of the Prosecutor. Courts don't like to add a term to a sentence, but the legislature allows for that in recognition of victim's rights.