One frequent bike accident related question I get asked many times a year is “Should I submit a claim for restitution in the criminal case against the person that hit me?”

Generally, my answer is “No.”

When the person who caused your accident was cited for a traffic or criminal violation, it began a sequence of events that usually triggers the Victim’s Impact Coordinator for the Court handling the case asking you, the accident victim, if you would like to include a claim for reimbursement of your damages as a part of any judicial sentence the at-fault driver may receive.

Colorado has enacted statutory provisions that require the Court to seek the victim’s input as to any potential sentence as well as to give the victim the opportunity to seek compensation for their damages as part of the criminal case disposition. The Victim’s Impact Statement is a document the Court may ask you to fill out answering these questions. You should receive this form from the Court within 4-8 weeks of your accident.

Generally, the victim’s wishes as far as how the Defendant should be sentenced, including agreement to any potential plea bargains, is given little weight in the judicial process. The simple reason is that a plea bargain takes into account not only the fault of the Defendant, but the totality of the evidence against the Defendant as well as the resources needed to be expended by the State in pursuing a conviction on a greater charge than that offered in a plea bargain.

The State cannot afford to take every case to trial and, in cases where the Defendant will not plead guilty to the exact charge he or she was cited with, the prosecuting attorney will offer a plea to a lesser charge – usually one with lower points or fines. While this may irk many accident victims, it really has no practical effect on the eventual liability that the Defendant may face in a future civil action. And this brings up the restitution issue.

Nothing that is entered as part of a criminal sentence will impair your right or ability to seek compensation through a separate civil lawsuit and the civil judicial system is the best avenue to seek compensation for your injuries, including the damage to your bike. It affords you the opportunity to secure a more complete and fair recovery than that possible under the restitution system for the following reasons:

1. Your total damages may not be known until long after the criminal proceedings have been complete. Restitution will be entered at the time that the criminal case is handled via a disposition or sentencing hearing. This can be weeks or months after the bike accident. However, most bike accident victims have injuries that can take much longer to heal and the true extent of an accident victim’s damages may not be known be the time the criminal case is resolved.

2. Restitution awards are notoriously difficult to collect upon. The Court is required to offer the Defendant a payment plan and this will mean that your compensation in a restitution claim can take months or years to be fully paid, if at all.

3. The civil judicial system can result in a money judgment which you can then seek enforcement of through many judicial mechanisms such as a lien or garnishment.

4. Any insurance coverage for the at-fault driver will only be triggered by a civil claim brought against the at-fault driver.

This last point is the most important because your best chance of recovery against the at-fault driver is through their liability insurance company. This company has a contractual duty to cover the at-fault driver against any damages their insured causes, up to the covered policy limits. They will pay the amount that we are able to prove and negotiate as your complete damages in one lump sum.

A wrinkle will develop in the event that the driver that hit you does not have insurance at all, or not in enough amounts to completely cover your damages. Hopefully, you will have purchased Uninsured/Underinsured Motorists Insurance coverage. This can potentially offer you a larger pool of money from which to recover your damages (even if you were riding a bicycle) and should be a mandatory coverage in my opinion. However, if you failed to secure this coverage under your own auto insurance policy, then you should consider a claim for restitution, as it will likely be your only avenue for financial compensation.

Peter Wilborn

Bike Law founder and bicycle crash lawyer Peter Wilborn has raced, toured, commuted, and ridden his bike daily for fun. In 1998, Peter had a bike tragedy in his own family, realized firsthand the need for lawyers who understand cycling, and devoted his law practice to Bike Law.