Were you injured in a Virginia car accident and the other driver was charged for their driving behavior? If so, it’s important to understand that, as an injury victim, you have rights. And the outcome of their criminal or traffic charge may impact your personal injury claim. Therefore, we recommend that you take an active role in the defendant’s case to ensure that your rights are protected.
The Virginia Constitution protects injury victims.
Article I, Section 8A, of the Virginia Constitution affords injury victims specific rights. These rights include:
- The right to be treated with respect, dignity, and fairness at all stages of the criminal justice system;
- the right to address the circuit court at the time sentence is imposed;
- The right to receive timely notification of judicial proceedings;
- The right to restitution; and
- The right to confer with the prosecution.
The Virginia code is even more specific. See Virginia Code Section 19.2-11.01 as well as Va Code Sections 19.2-11.1 through 19.2-11.4.
Be your own advocate.
Given Virginia law, we advise injury victims to be proactive when it comes to the defendant’s case. Especially if you were seriously injured, we always recommend you reach out to an attorney for guidance. We also recommend the following:
- Look up the defendant’s case online; (Here’s a video explaining how to do that.)
- Call the investigating officer to get an update on the prosecution;
- Make sure you understand the defendant’s next court date and whether you need to be present;
- As court approaches, stay in touch with the officer; and
- If the officer fails to respond, reach out to the local Commonwealth’s Attorney to let them know that you have a vested interest in the outcome.
Will you have to testify?
Look, most cases resolve short of trial. However, sometimes they don’t. Given that you’re an injury victim, your testimony could be vital in proving the case against the defendant. Therefore, you may be required to testify in court.
If you are an Abrenio Law client, we will talk to you in detail about this process. In short, you’ll work with the prosecutor who will facilitate you telling your story to the court. While this certainly can be a stressful process, it’s important that you are willing to help out if a prosecutor needs it.
Even when the prosecutor does their job, you likely won’t be happy with the outcome.
You may have suffered a catastrophic injury due to the defendant’s driving. Your life may be forever changed. If so, you’ll likely also be surprised that the defendant is perhaps only facing a reckless driving charge or a traffic citation, like failure to yield. And jail time may not even be on the table. How is it possible that they may only receive a fine or driving school?!
To be clear, we don’t have a satisfying answer for you. The true answer is that criminal/traffic court is very different than civil court. In criminal/traffic court, the system is meant to punish intent. Unlike actual intentional action (like assault, rape, murder), your case likely involves a negligent driver. Even if their behavior was reckless, they likely did not intend to hurt you. So, usually criminal law treats their behavior very differently.
If the defendant isn’t going to be punished, why should I even waste my time?
While the defendant may not be criminally punished for what they did to you, the outcome of their criminal or traffic case can have real impact on your personal injury claim. Indeed, Virginia civil injury law is very different from criminal/traffic offenses because “Contributory Neligence.” Under this rule, if you’re found even just 1% at fault, you are barred from recovery. So, any step closer to establishing that the defendant was solely at fault for your crash is important.
Under Virginia Code Section 8.01-418, Virginia law lays out specifically when a defendant’s actions in his or her criminal/traffic case may be used in your personal injury claim. Specifically when:
- The Defendant pled guilty or nolo contendre;
- Was found guilty in absentia;
- or suffered a forfeiture in a prosecution.
This raises two important points: 1) the Court’s actual finding is irrelevant, only what the defendant says, and 2) the outcome has to be to a relevant charge.
Regarding the first point, in practice, this means that from a personal injury claim perspective, you would likely be in a better position if someone pleads guilty to an amended lower charge than pleads not guilty to a higher charge but is convicted. (For example, a guilty plea on a reckless driving amended to an improper driving may be better than a not guilty plea to a reckless driving where the defendant was ultimately convicted of reckless driving.)
To the second point, the charge the defendant pleads to has to matter for your case. So, if your personal injury claim is due to the defendant’s negligent driving, the defendant’s plea needs to be to a charge relevant to driving behavior. It doesn’t really help if the charge is amended to a non-moving violation, such as defective equipment.
How can injury victims impact criminal or traffic cases?
To be clear, the prosecutor is not your attorney, and you are not their client. However, under Virginia law, you have a right to be heard. You also have the right to your own attorney. By simply being present and demonstrating that you are willing to testify, the prosecutor may be in a better position to see the prosecution through.
What’s more, your view on the outcome of the case may influence what the prosecutor does. For example, you may inform the prosecutor that you’d prefer that the defendant plead guilty to a less serious moving violation because it facilitates your civil case. On the other hand, you may tell the prosecutor that you will only approve of any plea offer to the defendant if it involves jail time, regardless how it may impact your personal injury claim.
Ultimately, the prosecutor will make the call. Their duty is to the community as a whole. But as part of that community, and the prosecutor’s “star witness,” what you says matters. Even if the prosecutor ultimately offers the defendant something you disagree with, your voice matters.
Still have questions?
Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have. James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.