Restitution in DUI Cases

So, you were charged with Driving Under the Influence after getting into an automobile accident. You’re probably already worried about court costs, fines, and the potential of serving time in jail or on probation. There may be more penalties in store for you, though, which you will need an experienced DUI attorney to anticipate and combat.

What is restitution?Restitution in DUI Cases

If you’re convicted of DUI, you may also be ordered by the court to pay restitution on top of the other punishments ordered by the court (18 U.S.C. § 3771, Crime Victims’ Rights Act). Restitution is court-ordered monetary compensation to the victim of a crime. The court will issue an order of restitution during sentencing, then the responsibility of ensuring a defendant is compliant with restitution payments is usually passed off to their supervision (probation) officer.

DUI Restitution in Tennessee

Article I, Section 35 of the Tennessee Constitution provides that victims of crimes are entitled to the right of restitution from the offender. Tennessee’s General Assembly has worked this right into many statutes enumerating criminal offenses. Per TCA §55-10-403(d), “The payment of restitution to any person suffering physical injury or personal losses as the result of such offense [Driving Under the Influence, TCA §55-10-401], if such person is economically capable of making such restitution, shall be imposed as a condition of probation under §55-10-410.” This means restitution may be ordered as part of a defendant’s sentence after they’re convicted of DUI. Please note that restitution ordered in criminal court is separate from any financial judgment that may be ordered as the result of a civil lawsuit!

The statute does not define the terms “physical injury” or “personal losses,” however these terms may be interpreted to mean “harm to the victim’s body” and “damages suffered,” respectively. In addition, while the term “economically capable” is also not defined by the statute, the inclusion of this qualification generally invokes the court’s consideration of the defendant’s current and future ability to pay restitution. (See T.C.A. § 40-35-304(d), “In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the defendant to pay or perform.”)

Pursuant to T.C.A. § 40-35-304, “Restitution as a Condition for Probation,” the court should order an evaluation of the amount and nature of any damages to the victim of a crime to be included in the presentence report. This is so that the court may review damages at the sentencing hearing, at which time the court must specify the amount and time (or payment schedule) of restitution. If the defendant’s criminal charges are resolved through a plea deal, the plea deal will define the terms of restitution rather than the sentencing judge(s) (TCA §40-35-304(g)(1)).

The victim, defendant, or district attorney may petition the sentencing court at any time to adjust or otherwise waive payment (or the remainder of payment) of restitution. If the petitioning party demonstrates that circumstances demanding restitution have changed or that it would be unjust to stick to the restitution as imposed, the court may waive, adjust, or modify the restitution accordingly. This may include moving the schedule of restitution payment, however the court may not schedule restitution payments beyond the term of the defendant’s sentence. (TCA §40-35-304(f)). In other words, restitution must be completed by the end of the defendant’s sentence, which is typically 11 months and 29 days (on probation) for DUI convictions. Any restitution that is not paid by the end of the defendant’s sentence may be converted to a civil judgment pursuant to TCA §40-35-304(h).

The district attorney, typically through a victim-witness coordinator, is responsible for informing victims, upon request, of the methods by which they may obtain restitution directly from the defendant and how to receive assistance in obtaining said restitution (TCA §40-38-103(a)(1)(H)). Typically, restitution is ordered to be paid to help victims recover the costs of medical bills, property repair, and sometimes funerary services. However, there have been some interesting cases of restitution paid resulting from DUI convictions in Tennessee.

In 2018, Joseph Gevedon drove through a cemetery in Giles County, Tennessee, damaging multiple gravestones in the process. Gevedon pled guilty to driving under the influence and was required to later appear for a restitution hearing. When Gevedon violated his probation and was ordered to serve his sentence in confinement rather than on probation, the Giles County Circuit Court simultaneously ordered over thirty thousand dollars in restitution. Gevedon appealed on the grounds that the court ordered restitution when his probation was revoked, not considering that being incarcerated would prevent him from being able to pay. Gevedon’s case escalated to the Supreme Court of Tennessee in 2022, where the Court evaluated whether the trial court acted within the bounds of the law by ordering restitution. Tennessee’s Supreme Court ultimately ruled that the trial court erred by ordering Gevedon to pay restitution in an amount that he did not have the financial resources to pay, whether or not he was incarcerated. Quoting State v. Johnson, 968 S.W.2d at 886, the Court maintained that“[a]n order of restitution which obviously cannot be fulfilled serves no purpose for the appellant or the victim.” The Court then remanded the case back to the trial court to determine what amount of restitution, if any, would be reasonable to order Gevedon to pay.

In short, if you’re convicted of Driving Under the Influence in Tennessee, the sentencing court may order you to pay restitution for damages to any victims of the convicted offense. However, the court cannot order restitution beyond your financial capabilities, nor can the court order you to pay restitution beyond the end of your sentence. If the trial court errs by ordering restitution you don’t have the means to pay, you can appeal the restitution order through the appellate courts.

DUI Restitution in Georgia

Georgia law provides for similar circumstances of restitution as Tennessee law. O.C.G.A. §17-14-3 mandates that “in addition to any other penalty imposed by law, a judge of any court of competent jurisdiction shall, in sentencing an offender, make a finding as to the amount of restitution due any victim, and order an offender to make full restitution to such victim.” The statute elaborates that this restitution is part of the defendant’s probation/sentence, similar to in Tennessee.

According to O.C.G.A. §17-14-2(7), restitution is defined as “any property, lump sum, or periodic payment ordered to be made by any offender or other person to any victim by any ordering authority.” Said victim may be a governmental entity, public corporation, individual person or his representative, the estate of a deceased person, or other party “suffering damages caused by an offender’s unlawful act” (O.C.G.A. §17-14-2(9)). To determine the amount of damage incurred, the criminal justice court must consider what the proper measure of damages would be in a civil action (Lomax v. State, 200 Ga.App. 233, 234, 407 S.E.2d 462 (1991)).

Ultimately, though, pursuant to O.C.G.A. §17-14-9, “The amount of restitution ordered shall not exceed the victim’s damages.” If the amount of restitution is not agreed on by the defendant and the victim prior to sentencing, the court will set a date for a hearing to determine restitution. Through a preponderance of the evidence, with the burden being on the state to prove the extent of the victim’s damages, the ordering authority (usually the sentencing court) will resolve any disputes as to the proper amount of restitution. At this same hearing, the defendant should produce proof of their financial resources in order to demonstrate to the court their ability or inability to pay restitution (O.C.G.A. 17-14-7(b)). Once restitution has been ordered, the ordering authority maintains the authority to modify the restitution order at any time before the expiration of the order. So, it may be possible to petition the court for a different payment plan or reduced restitution if you’re able to prove inability to pay or that the victim’s damages were inaccurate.

Defendants may be ordered to make restitution payments through the clerk of the sentencing court, however the judge may also order defendants to make payments to another agency, particularly if the victim is a governmental entity. Unfortunately, if you’re ordered to pay restitution on a payment plan rather than in a lump sum, your restitution may be subject to accrual of interest (O.C.G.A 17-14-14(d)). The clerk, or otherwise the defendant’s supervision officer, will monitor the defendant regularly to ensure that they are keeping up with restitution payments. Compliance with the restitution order will be enforced in the same manner as civil judgements are enforced in the state (O.C.G.A. § 17-14-13). 

If you’ve been in a car accident and are now facing DUI charges, you need an attorney that will fight not only your criminal charges, but also any attempts to obtain a restitution order from the sentencing court. Attorneys Garth Best, Matt Brock, and Phil Spitalny are highly experienced in DUI cases and will help you achieve a resolution that protects your rights and your future. Reach out using our online contact form or by calling our office at 423.829.1043 to schedule your FREE consultation today!