August 12, 2019 | lmsXpect3 Most people know they can file a personal injury lawsuit if they are injured in an accident. But in some cases, victims may also seek compensation through the criminal justice system. Federal judges can award “full and timely restitution” to a victim as part of a criminal sentence. In a July 26 decision, the U.S. Fourth Circuit Court of Appeals said the right to restitution includes misdemeanor cases. The court addressed a sentence arising from a 2017 accident. The defendant was driving drunk and hit a motorcyclist. The accident took place on a federal highway. Prosecutors subsequently charged the defendant with six federal traffic violations. The defendant pleaded guilty to three misdemeanors before a federal magistrate. The magistrate sentenced the defendant to two years probation. The injured motorcyclist also asked the magistrate to award restitution. The magistrate declined, citing insufficient evidence of the victim’s damages. The magistrate also suggested a misdemeanor court was an “unsuitable forum” for the victim to seek compensation. The Fourth Circuit disagreed. It said the magistrate needed to apply a “balancing test” to the victim’s restitution request. This test weights the “victim’s need for restitution” against the “burden imposed on the sentencing court.” Here, the magistrate acknowledged the need for restitution. But the magistrate did not explain why “the burden of complexity or delay in sentencing” would make restitution impractical. The appeals court directed the magistrate to reconsider the victim’s request. In doing so, the Fourth Circuit said the magistrate could consider the “availability of a civil remedy.” But the magistrate should not place “great weight on this factor.” Upper Marlboro, MD, personal injury attorney Rick Jaklitsch said the Fourth Circuit’s decision is a common-sense victory for accident victims. “Criminal restitution is an often overlooked avenue for accident victims entitled to compensation. In certain situations, a victim can actually recoup their medical expenses and lost wages more quickly through restitution. This does not mean, however, that victims should not also explore filing a separate personal injury lawsuit. As the Fourth Circuit noted, the availability of such claims is a factor a sentencing judge can weigh in deciding restitution. Additionally, there are many accidents where authorities fail to bring criminal charges, and therefore restitution is not available.