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Legal-Kal
Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 584
Experience:  Attorney at Law Offices of Khaled Issa
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My husband was involved in a traffic accident on 11/17. He

Customer Question

My husband was involved in a traffic accident on 11/17. He rear ended the car in front of him. He & the other person got out of the cars and looked at the damage. They spoke for a few moments & then my husband said, let's pull over to the parking lot to the right since there was no shoulder. She said ok... he pulled over & she went to the left (other direction) and did not come back. He waited for 10 minutes & then drove home. Very strange. We filed a claim with our insurance company the next morning, 11/18. A couple of days later I received a call from our insurance adjuster stating that the other party has come forward wanting us to pay for her car (that's fine, we knew my husband was at fault since he rear ended her) and also for "injuries". The cars could not have been going more than 10 - 15 miles per hour and there was barely any damage to her car, so not sure what kinds of injuries she could have sustained??? Then on Saturday, 11/21, I received a letter from the Sheriff's department (written on 11/18) that I needed to contact them about an accident that my vehicle was in and let them know who was driving (I am the registered owner). I called the Sheriff's dept this morning & was told that the other party is claiming that this was a hit & run! They were going to call my husband to take his statement & the other party as well. I explained to him we knew my husband was at fault for the accident & we filed with our insurance the next day, etc... and he said he will look into it and if he feels it was a case of hit & run he will have to turn it over to the DA! Please let me know if this could be very serious as we never tried to avoid anything. I think it was a misunderstanding and our insurance is working with her as we speak to pay her out for her car and any injuries, so could there be a criminal case? What is the best thing to do? We really cannot afford an attorney and why should we need one? Thank you. Btw... we live in California.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Legal-Kal replied 1 year ago.

Good Afternoon:

My name is ***** ***** I would be happy to assist you in your legal issue today. Before we begin, I just want to make sure on whether or not you are also asking about the insurance claim, or just the possible charges that may follow as a result of the other individual's allegations?

Customer: replied 1 year ago.
I am curious as to the insurance claim, but more importantly the potential charges & outcome.
Expert:  Legal-Kal replied 1 year ago.

Ok, I will begin with the criminal issues first.

"Hit and Run" in California is generally a misdemeanor offense. I say generally because only under certain circumstances can they be felonies (major injury or death of another). Obviously, these circumstances are not present in your husband's scenario, we we can bypass that.

A misdemeanor Hit and Run in California is punishable by up to 6 months and county jail and a fine of up to $1,000. In order to be convicted of Hit and Run, the State must prove that your husband: 1) left the scene of an accident, 2) without identifying himself and 3) property damage occurred.

You must also remember that since this a criminal matter, the State must prove beyond a reasonable doubt that that he left the scene of the accident. It is a valid defense, in your husband's case, that the other individual left on her own accord without seeking to obtain the information. (She most likely filed a police report afterwards because she was instructed by her insurance company that it would be required to file the claim for the property damage).

If you husband testifies that he, in deed, did stop and the other person either: agrees that he stopped or appears to be incredible, then a Court may likely find him not guilty of the offense. Furthermore, if your husband has a clean driving background and criminal history, then there may be the possibility that he can qualify for some type of deferred prosecution where, at some point, the charge could be dismissed.

Do you have any questions I can answer regarding the criminal aspect before I move on to the property damage portion?

Customer: replied 1 year ago.
Doesn't the fact that they spoke and then he waited for at least 10 minutes mean that he was not trying to hit & run? It is ridiculous. We filed the claim w/ our insurance company the next morning with him as the driver, prior to us knowing she was coming back to make a claim.
Customer: replied 1 year ago.
Would they really put him in jail for this? OMG! I am scared. This seems crazy!!!!
Expert:  Legal-Kal replied 1 year ago.

Absolutely it does! And these are things that your husband will have to testify to. However, I can only presume, since he was contacted by law enforcement, that the other driver made a bold faced lie and said that your husband never stopped.

What the case will boil down to, unless there is other evidence I don't know about, is credibility. This is a "he said, she said" type of case, which many cases are. The more questions that your husband can answer in Court and the fewer that the other driver can answer, the more a Court will believe your husband's side.

Now, as to your husband being put in jail, this is rare and unlikely (AGAIN, THIS DEPENDS ON YOUR HUSBAND'S BACKGROUND). While the offense is technically subject to jail time, this will not occur unless your husband has had several prior convictions of the same type of offenses. Jail is only possible because it is a misdemeanor, however it is not likely.

It is important to note that, since this is a misdemeanor, your husband would be entitled to a public defender is he financially qualifies for one. The public defender will be able to ask the other driver the questions needed to discredit her. For instance, if it is revealed that the only reason she filed a police report was to obtain your insurance information so she does not have to file a claim with her insurance company (which entails a deductible), then that creates a financial motive for her to fabricate a hit and run story.

Expert:  Legal-Kal replied 1 year ago.

Since I have not heard back, I will assume I can move on to the property damage portion. (If at anytime you do have questions remaining regarding the criminal aspect, please ask and I will be more than happy to answer them).

The property damage portion is rather straightforward. An insurance adjuster from your insurance company will speak with the other driver about the accident in an attempt to determine liability (who is at fault). They will then talk to your husband about the accident. (Hit and Run here plays no important role).

Assuming your husband will be forthright about the accident, the insurance company will determine that your husband is the liable party. The other driver will obtain an estimate and repairs to their vehicle. The insurance company will then issue a check for the total amount of repairs directly to the body shop. The insurance company will only pay for "reasonable damages" occurring as a result of the accident.

If the total amount of repairs exceed the fair market value of the vehicle, the vehicle will be considered a "total loss" and the other driver will receive a check for the fair market value of the vehicle.

As you can see, the criminal aspect is much more nuanced than the property damage portion.

Please let me know if you have any questions regarding the criminal or property aspect (or both). I would be more than happy to continue with answering your questions. If not, please click "accept" and leave positive feedback so I may receive credit for my response. Thank you!

Customer: replied 1 year ago.
My concerns re: the property damage & personal injury (yes, now she's claiming she is "slightly" injured / sore. I only carry $10,000 in property & $25,000 in bodily injury, but I am assuming that will be enough. My husband was totally honest with them.The criminal part is the part I am the most worried about because it seems unfair. They got out of the car, he asked if she was ok, he said i'm sorry, and said let's get out of the road... pull over to the right, right around the corner. She said ok, and then she took a left... he waited 10 min. Why would SHE leave? And maybe it was all a misunderstanding, but talk of jail and fines, etc is very scary to me! My husband has an ok driving record other than a DUI about 3 years ago but he doesn't drink anymore.
Expert:  Legal-Kal replied 1 year ago.

I have actually encountered similar situations in practice. What I have generally concluded is there is a financial motive. An accident occurs. Initially, the driver who was struck is either in a bit of a shock or in a hurry. They say they are ok and leave. After talking to people, they realize that they can file a bodily injury claim and "make some money." However, they don't have the insurance information. They file a false hit and run report and, as a result, obtain the information. They then proceed with a bodily injury claim.

That is always one reasonable guess as to why they do that. Also, there is always the possibility that the other driver is hiding some criminal activity that they do not want the police to see if they arrive on scene. These can include: possessing drugs or weapons in the car, not having a valid driver's license at the time or actually being under the influence of drugs that, while cannot be detected by regular individuals, can be detected by law enforcement who are trained in it.

These are all the types of questions that an attorney representing you will look into and ask of the other driver in Court. Depending on the answers, they can establish a financial motive, which in turn would diminish the other driver's credibility as to the events taking place .

About the policy limits in place, I can assume, based on your description, that would be enough coverage.

Again, you must understand that jail is technically a possibility, but it is not likely. Even with a prior DUI, I do not believe your husband would be sent to jail for this. As an example, some states classify speeding in excess of 25 MPH as a misdemeanor, therefore punishable by jail. In practice, no one gets sent to jail for speeding 25 over unless there are additional circumstances (i.e., accident leading to death, speeding 50 over, etc).

Customer: replied 1 year ago.
Do you think we need to hire him an attorney at this point? I spoke to the Sheriff this morning and he said that he was looking into it and was going to talk to my husband and to the other party and then determine if he would send it to the DA or not.
Expert:  Legal-Kal replied 1 year ago.

It is always best to avoid speaking to law enforcement when there may be charges down the road. That is usually a rule of thumb in criminal cases. Let law enforcement conduct any investigation they want and, if charges are filed, that would be the time to retain an attorney.

However, ultimately, the decision to speak with law enforcement or not rests upon your husband's shoulders. If he does wish to speak to law enforcement, he does have the right to have an attorney present with him during questioning (although, if you are going to hire one, I would advise your husband to speak with him prior to speaking with the Sheriff's Office).

This is a tricky situation because I have encountered many individuals who want to speak to police so they can clear up any "confusion" and avoid charges. However, this plan may backfire and create more harm than good. Therefore, the risks outweigh the reward. There is always the possibility that the Sheriff's could misinterpret something and, if that happens, the State will try to make it seem as that misinterpretation was something your husband said freely and voluntarily.

While I always advise not to speak to law enforcement, I cannot tell you (or your husband) what you must do. However, when in doubt, retain an attorney. The attorney may be able to speak to the Sheriff's on your husband's behalf (while not likely to appease the Sheriffs, it is still something that your attorney can do).

Expert:  Legal-Kal replied 1 year ago.

Hello:

It has been a little over one day and I am wondering if you have any other questions that I would be pleased to try to answer? If not, please click "accept" and leave positive feedback so I may receive credit for the response. Thanks and good luck!

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