Video – Attorney Andrew Dósa Answers: Is Restitution Mandatory Or Optional In Criminal Cases?

Ray Hrdlicka – Host – Attorneys.Media

“Are there any type of cases that restitution does not apply to?”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“The answer is restitution is constitutionally required in the state of California.”

Ray Hrdlicka – Host – Attorneys.Media

“Constitutionally required?”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“That is correct.”

Ray Hrdlicka – Host – Attorneys.Media

“On every case?”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“One every case.”

Ray Hrdlicka – Host – Attorneys.Media

“Wow. Obviously, that is something most people don’t realize. Obviously, a very important point to somebody going through the criminal justice system. If that’s the case, how is it applied to a myriad of cases, whether it’s a domestic violence, or a theft, or a grand theft auto? Well, that one’s obvious, but sex crimes? How is restitution applied in those various cases?”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“The simple answer is that restitution is going to be imposed in any case where there is a victim who’s suffered some kind of financial loss. Let’s use the example of a person who’s a victim of a sex crime or domestic violence. That person gets therapy, counseling. The cost of those counseling sessions will be borne by the defendant. If there is a robbery, and the person is injured in some way, or there’s a battery and there’s a physical harm and they get medical care, that is a component of restitution. If there is a theft, obviously the value of the product, the item that is stolen, that gets reimbursed. I had a case where a client was accused of embezzling more than $600,000. While we ended up concluding that amount was a little over $300,000, the client was required to not only pay that amount back but required to reimburse the company for its risk management expenses of doing its investigation to unearth and expose the crime that had been committed.”

Ray Hrdlicka – Host – Attorneys.Media

“In other words, to completely make the victim whole.”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“That’s the idea. As an alternative to that, restitution is a requirement of probation, but if you cannot pay, you won’t be found in violation of your probation if you simply are financially incapable of paying. If you cause an accident, let’s say you are negligent in some way, and it’s more than just careless driving, or let’s use the example of you’re driving, and you don’t have auto insurance, you don’t have liability insurance for the individual who is injured, or you don’t have property damage, then that will be included as restitution. If you are financially, literally not capable of paying, you are not in violation of probation because of that.”

Ray Hrdlicka – Host – Attorneys.Media

“And that’s in California?”

Andrew Dósa – Criminal Defense Attorney – Alameda County, CA

“That’s in California. What will happen then is when the end of your probation is over, if you have not been able to make payments, because you financially cannot do it, you will not have a violation of probation. So, the probation is not extended, and that obligation will go away, once probation terminates. But certainly, the victim of a crime can always bring a civil action and pursue you that way. I will say, interestingly enough, a victim of a crime can sue you in a civil action, get a recovery in the civil case, and get restitution from you in the criminal case. So there is an advantage to the victim that gives them an extraordinary amount of power to force the defendant to come to terms with the harm that’s been caused. So just that I am perhaps a little bit more clearer about the constitutional requirement, several years ago, approximately 15-20 years ago, there was an initiative called the ‘Victims Bill Of Rights.’ In that, the people that had drafted that initiative, required restitution to be imposed in every case where there was a victim of a defendant’s behavior.

Restitution is not required in a case where there’s a so called ‘victimless’ crime. If there is a victim with some financial burden, some financial damage, restitution must be imposed. Under the constitution, it is directed at the victim, it is focused on the victim. It says the victim has the right to be reimbursed, to get restitution for any damages that the victim has suffered.”