Restitution is ordered as part of the penalties in many criminal cases.  Restitution is used to pay back the victim for damage to property, medical expenses, and other harms they suffered from the crime.  Often, paying back a victim is an important part of the process of accepting the penalties and moving toward rehabilitation, but being asked to pay restitution when the victim has already been compensated through insurance or had stolen items returned may be unnecessary.  The Ventura criminal defense attorneys at the Law Offices of Bamieh and De Smeth explain when you can get out of paying restitution in California.

Is Restitution Required in California?

Restitution is authorized under California Penal Code § 1202.4.  This statute says that someone who suffers financial harm as a crime victim “shall receive restitution directly from a defendant.”  As written, this means that restitution is a necessary part of the penalties any time the victim has a financial loss.  However, there are certain details and pieces of this statute that may limit when restitution is ordered in the first place.

According to the statue, restitution is only ordered once the defendant is convicted of the crime.  If you are able to beat the charges against you, the court will likely be unable to force you to pay any restitution.

The statute gives the court the option of not issuing restitution, but the court needs “compelling and extraordinary reasons” to avoid restitution.  The fact that you do not have the funds to pay for restitution is not a good enough excuse to avoid restitution.  The court will still require restitution payments, even if they are too expensive for you to pay.  However, the court may consider your low funds as a consolation, potentially lowering the criminal fine to allow you to put more of that money toward restitution instead of the fine.

Courts may also order restitution or similar payments to the government to cover lab testing.  This can occur for blood alcohol concentration (BAC) testing for DUI charges or for lab testing on drugs for drug possession charges.  These payments are often unavoidable.

Do I Need to Pay Restitution if Insurance Covers the Damages?

Many people may think that if the victim had insurance to cover the damages you caused them, there is no need for restitution.  Under the CA Penal code, the presence of a third party who is willing to cover the damages does not relieve you of the requirement to pay restitution.  If you caused harms or injuries that your insurance will cover (e.g., damages from a drunk driving car crash) or the victim’s insurance will cover the harm (e.g., homeowners insurance covering graffiti damage or health insurance covering medical expenses after an assault), you may still be asked to pay restitution.

In many cases, restitution that the victim does not actually need will go into a statewide “Restitution Fund” operated by the California Victim Compensation Board to help other victims.

Similar processes may take place if the victim already had things set right.  For instance, if you were convicted of a theft offense but returned the stolen items in working condition, the victim may suffer no economic loss.  Similarly, if you were convicted of vandalism, but you cleaned or repainted the affected building as part of your community service, there may be no harm left to compensate the victim for.  The court may still order restitution in the full amount of damages and pay that restitution into the Restitution Fund.

Can I Stop Restitution Payments Early?

If you are ordered to pay restitution as part of your case, you need to complete those payments according to the court order.  Your penalties will not be considered completed until your restitution is paid, your fines are paid, and your jail time or probation is served.  If you still have outstanding penalties, you may not be able to apply for expungement and may still be held under supervision from probation or parole.

If your payments are a significant burden, the court may be able to put you on a different payment schedule or reconsider the fines and restitution in your case.  Especially if your wages are being garnished for restitution, this can help free up additional funds.  Your attorney can file a case for sentencing reconsideration where they can ask the court to reduce the fines because of the severe burden.

In many cases, the court is may be held to the standards of the U.S. Constitution.  The 8th Amendment protects against cruel and unusual punishment, excessive bail, and excessive fines.  In early 2019, the Supreme Court ruled that the excessive fines restriction applies to the states, which means that if restitution is extremely high and unjust, the fine may be unconstitutional.  However, this means the fines would have to be excessive in light of the crime’s maximum fine – a factor the CA Penal Code already considers when ordering restitution in the first place.

Call Our Ventura Criminal Defense Lawyers for Help with Restitution Cases

If you or a loved one committed a crime and might be ordered to pay restitution or you are currently under a court order to pay excessive or unreasonable restitution, the Law Offices of Bamieh and De Smeth may be able to help.  Our criminal defense lawyers may be able to fight your case and help you avoid conviction or argue for reduced fines and restitution at sentencing.  To schedule a free consultation on your case, call our law offices today at (805) 643-5555.