Chapter 7 - § 7.8 • RESTITUTION

• Jurisdiction: Colorado

§ 7.8 • RESTITUTION

§ 7.8.1—Overview

In 2000, the Colorado legislature significantly revamped the process by which restitution is collected. In 2003, the legislature made significant changes to the statute, some of which were rendered moot by the expiration of Colorado's no-fault auto insurance system. The return to the tort system of "fault" complicates this area of law and creates uncertainty in the application of restitution issues.

The legislative declarations in C.R.S. § 18-1.3-601 make clear a legislative intent to make restitution a high priority. The legislation describes previous restitution procedures as "inadequate and inconsistent." The legislation describes the payment of restitution as "a mechanism for the rehabilitation of offenders . . . [and] a deterrent to future criminality." Timely restitution is described as a requirement of "an effective criminal justice system." The purposes of these restitution procedures are to "provide for and collect full restitution for victims of crime in the most expeditious manner." Cooperation and collaboration among departments are encouraged. The legislation is to be liberally construed to achieve this purpose. C.R.S. § 18-1.3-601(2).

A court must consider and, if applicable, order restitution in all alcohol-related traffic sentences. The statute broadly defines both the category of "victim" and the types of losses for which a defendant is liable. A restitution order automatically turns into a civil judgment in favor of the victim, and the judgment remains in force until the restitution is paid in full. The collection process has been placed into the hands of collections investigators, who have many tools to enforce collections orders.

In an alcohol-related traffic case, the court must first determine if the defendant or the defendant's vehicle had a complying policy of insurance in effect. C.R.S. § 18-1.3-603(8) sets forth that:

(8)(a) Notwithstanding the provisions of subsection (1) of this section, for a non-felony conviction under title 42, C.R.S., the court shall order restitution concerning only the portion of the victim's pecuniary loss for which the victim cannot be compensated under a policy of insurance, self-insurance, an indemnity agreement, or a risk management fund.

(b) The court, in determining the restitution amount, shall consider whether the defendant or the vehicle driven by the defendant at the time of the offense was covered by:

(I) A complying policy of insurance or certificate of self-insurance as required by the laws of this state;

(II) Self-insurance including but not limited to insurance coverage pursuant to the provisions of part 15 of article 30 of title 24, C.R.S.; or

(III) Any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim.

(c)(I) Except as otherwise provided in this paragraph (c), a court may not award restitution to a victim concerning a pecuniary loss for which the victim has received or is entitled to receive benefits or reimbursement under a policy of insurance or other indemnity agreement.

(II)(A) A court may award a victim restitution for a deductible amount under his or her policy of insurance.

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(d)(II) Nothing in this paragraph (d) shall prohibit a nonowner driver or passenger in the vehicle from being awarded restitution if the driver or passenger was not covered by his or her own medical payments coverage policy.

(e) (I) Notwithstanding any provision of law to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to defend a defendant in a hearing concerning restitution. No court shall interpret an indemnity or insurance contract so as to obligate an insurance company, risk management fund, or public entity to defend a defendant at a restitution hearing absent a specific agreement.

(II) Notwithstanding any provision of law, indemnity contract, or insurance contract to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to pay or otherwise satisfy a civil judgment entered pursuant to this part 6, or to indemnify a defendant for an amount awarded in a restitution order.

(f) Nothing in this article shall be construed to limit or abrogate the rights and immunities set forth in the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S.

(g) The provisions of this subsection (8) shall not preclude the court, pursuant to article 4.1 of title 24, C.R.S., from ordering restitution to reimburse an expenditure made by a victim compensation fund.

If there is an insurance policy on the defendant's vehicle in effect that would cover the victim's pecuniary loss, restitution should only be ordered to cover any amount not covered by the insurance policy.

The restitution statute applies to traffic misdemeanor offenses, including alcohol-related offenses, and "[e]very order of conviction . . . shall include consideration of restitution." C.R.S. § 18-1.3-603(1). Restitution must be considered and imposed, even if the defendant is going to be incarcerated for a significant period of time and regardless of the defendant's ability to pay. People v. Stovall, 75 P.3d 1165 (Colo. App. 2003).

Several terms that were the subject of both legislation and litigation under previous procedures have been defined more clearly and, in many cases, more broadly.

"Restitution" is defined in C.R.S. § 18-1.3-602(3) as:

(a) . . . any pecuniary loss suffered by a victim and includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, money advanced by a governmental agency for a service animal, adjustment expenses, and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money. "Restitution" does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages.

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(b) "Restitution" may also include extraordinary direct public and all private investigative costs.

"Victim" is defined in C.R.S. § 18-1.3-602(4) as "any person aggrieved by the conduct of an offender and includes but is not limited to" (1) the actual victim, (2) any person harmed by the conduct of the offender, (3) an insurer or other entity obligated to compensate the victim or person harmed by the conduct, (4) a crime victim compensation board that has paid out a...