How to get out of a hit and run charge – an overview
They say the law is a practice but there is no use in recreating the wheel. I hope these tips will help your clients who are facing hit and run claims pending an investigation. If done right, you can get back your client’s car and property back from law enforcement. Your client will also avoid answering questions from the police officer as an added bonus. In addtion, your client will avoid the serious consequences from civil liability by using their insurance for the hit and run accident.
1. Get your client ready and prep them not to talk.
There are reasons why your client is not yet a defendant in court, but that can change in a matter of weeks if they talk with law enforcement and identify themselves as the hit and run driver. Let your client tell their story to you. They will talk about why they left the accident scene and their circumstances in life and how that prevented them from doing their obligation to stop, and how they can’t be arrested.
I like to let the client know about their rights. (4th, 5th, and 6th) for not making things worse when the officer happens to roll up on the vehicle owner’s house. One thing that makes things easier for me and I would like to share is the ACLU bust cards. Print these out and give them to your client while they are hiding like a fugitive
2. Be familiar with the hit and run laws.
The legislatures knew how police would abuse the seizure laws. In the past, the law enabled them to hold onto our client’s car under the disguise of it being for physical evidence, but they would release it if our clients answered a few questions and fill in few details of their police reports. Thankfully they have added this statue to the hit and run laws in California to Avoid this.
(a) When any peace officer, as that term is defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code or any regularly employed and salaried employee who is engaged in directing traffic or enforcing parking statutes and regulations, has reasonable cause to believe that a motor vehicle on a highway or on private property open to the general public onto which the public is explicitly or implicitly invited, located within the territorial limits in which the officer is empowered to act, has been involved in a hit-and-run accident, and the operator of the vehicle has failed to stop and comply with Sections 20002 to 20006, inclusive, the officer may remove the vehicle from the highway or from public or private property for the purpose of inspection.
(b) Unless sooner released, the vehicle shall be released upon the expiration of 48 hours after the removal from the highway or private property upon demand of the owner. When determining the 48-hour period, weekends, and holidays shall not be included.
(c) Notwithstanding subdivision (b), when a motor vehicle to be inspected pursuant to subdivision (a) is a commercial vehicle, any cargo within the vehicle may be removed or transferred to another vehicle.
This section shall not be construed to authorize the removal of any vehicle from an enclosed structure on private property that is not open to the general public.
(a) The driver of any vehicle involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists. Moving the vehicle in accordance with this subdivision does not affect the question of fault. The driver shall also immediately do either of the following:
(1) Locate and notify the owner or person in charge of that property of the name and address of the driver and owner of the vehicle involved and, upon locating the driver of any other vehicle involved or the owner or person in charge of any damaged property, upon being requested, present his or her driver’s license, and vehicle registration, to the other driver, property owner, or person in charge of that property. The information presented shall include the current residence address of the driver and of the registered owner. If the registered owner of an involved vehicle is present at the scene, he or she shall also, upon request, present his or her driver’s license information, if available, or other valid identification to the other involved parties.
(2) Leave in a conspicuous place on the vehicle or other property damaged a written notice giving the name and address of the driver and of the owner of the vehicle involved and a statement of the circumstances thereof and shall without unnecessary delay notify the police department of the city wherein the collision occurred or, if the collision occurred in unincorporated territory, the local headquarters of the Department of the California Highway Patrol.
(b) Any person who parks a vehicle which, prior to the vehicle again being driven, becomes a runaway vehicle and is involved in an accident resulting in damage to any property, attended or unattended, shall comply with the requirements of this section relating to notification and reporting and shall, upon conviction thereof, be liable to the penalties of this section for failure to comply with the requirements.
(c) Any person failing to comply with all the requirements of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment in the county jail not exceeding six months, or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
3. Cover your butt and make a record when serving the 22655 notice.
I can’t tell you how many times I’ve been burned by officers telling me to leave a message then they would not get back to me for a week. It is best to serve this at the front desk and make a record of when it was served. By serving this at the front desk then you can avoid slowing down the progress of getting the car back. This is one of the most important steps because if you left a message an officer can be out (in the field, vacation, day off). When serving this I like to include a proof of service for my records and I give a copy of the law to the officer to avoid the posturing. However, sometimes posturing is there and we will discuss in this the next few steps.
4. Stand your ground with the officer and be professional.
I can’t tell you how many times an officer has said to me that he has pictures from cameras, statements from an independent witness, my client’s cell phone and wallet still inside the car, and my client has no chance of getting away. However, all they want is a statement, and they would raise their voice or threatened some escalation if we did not cooperate.
The truth is this is just a training issue with officers. With a layperson, they are able to get compliance by saying that this is only property damage and the license plate already identifies the driver, or they can avoid jail time if they cooperate and a bonus they will just be cited and not arrested. They are more used to dealing with civilians than someone who knows the law and isn’t putting them up with their verbal judo. The result is a frustrated officer who keeps insisting that your client talk.
It is best to write this off as a training issue. These are officers who we will be working with for the long haul and it’s just better to take the high road rather than getting into a pissing match about their insufficient evidence with them. This is when the notice and proof of service come in handy. By having it served and 48 hours have passed, you can thank Officer Aggro and head to his sergeant to release the car.
5. Be ready to file your return of property motion and objection over jurisdiction.
There are going to be days where the whole system is working against you. I will not name the local judge who refuses to hear my motion because it was a jurisdiction issue, but be ready for this type of silliness and push to get your case on the calendar. This means not assuming the judge knows the law and insisting on a special proceeding for non defendants pursuant to Avelar 7 Cal App 4th 1270.
Include language in the motion, which includes. For Full motion, you can reach me at Orange County DUI hit and run Lawyer
This motion is made on the grounds that the property seized is being held unreasonably and there is no probable cause to believe that a crime has been committed or if a crime was commited posesion of the property is longer than necessary for the purpose of investigation.
This motion is based on California, Penal Code Sections 1536, 1538.5 and 1540, article I, section 15 of the California Constitution, this notice of motion, the attached memorandum of points and authorities served and filed herewith, and such supplemental memoranda of points and authorities as may hereafter be filed with the court or stated at oral argument, on all papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.
The Penal Code provides for return or delivery of property seized under warrant. The trial court is empowered to entertain a motion for return of seized items by section 1536, as well as by the court’s inherent power to control and prevent the abuse of its process. (People v. Superior Court (1972) 28 Cal. App. 3d 600, 607 [104 Cal. Rptr. 876]; People v. Icenogle, supra, 164 Cal.App.3d at p. 623.)
If no criminal action is pending, an owner’s motion for return of seized property is classified as a special proceeding. (Avelar v. Superior Court (1992) 7 Cal. App. 4th 1270, 1276 [9 Cal. Rptr. 2d 536] [motion under §§ 1539-1540 is a special proceeding].) A “special proceeding” is one which is distinct from any underlying litigation. (7 Cal.App.4th at p. 1275.)
Both criminal defendants and nondefendants may move for return of seized property because the search warrant or seizure was unlawful. A defendant may move for return of property or suppression of evidence pursuant to sections 1538.5 and 1540, on grounds that the search or seizure was illegal, or the warrant was insufficient on its face. (Buker v. Superior Court (1972) 25 Cal. App. 3d 1085, 1088 [102 Cal. Rptr. 494].)
Under sections 1539-1540, a nondefendant may move for return of property on grounds that the property taken was not the same as that described in the warrant, or that there was no probable cause to believe the existence of the grounds on which the warrant was issued. (People v. Superior Court (Chico etc. Health Center) (1986) 187 Cal. App. 3d 648, 650 [232 Cal. Rptr. 165].)
It won’t happen overnight, but if you follow this process, the client will eventually get their car back without having to talk with the police and hopefully preventing an arrest and a case from popping up in the local courts on criminal prosecution.
6. Keep your client from turning his hit and run into multiple crimes.
Judge Landon, at the Harbor Justice at the Orange County Superior Court in H8, has a speech. He gives a light-hearted and entertaining speech peppered with jokes to the audience. In this speech, he jokes about not using a stolen credit card to pay their fines and by doing so they are changing their misdemeanor into a felony. The same goes here when dealing with the insurance company.
As criminal defense attorneys, we need to stop our clients from telling wild story stories to make an insurance claim. On the other hand, there is the personal injury claim and vehicle damage they need to deal with. Examples of wild claims is some guy stole my car but used it for a hit and run but I know the damage wasn’t substantial or someone stole my car but I didt call the police for 3 days
Often our client just got spooked because they were the drunk driver or under the influence of drugs in an accident and don’t want another alcohol-related charge on their record, so they just took off. However, this develops another problem with the insurance company aspect because our clients will need their car fixed but can’t be identified as the hit and run driver at the same time.
7. It’s okay to talk to and say they were the hit and run driver if it is under privilege.
The temptation to cash in on their insurance policy is tempting and it is important that we have an understanding of the current case regarding privilege to get our client’s paid by insurance and keep the case away from nosy investigators and prosecutors. The controlling cases on these in California are Travelers Insurance – 143 Cal.App.3d 436 (1983) Mariam Soltani. – 208 Cal.App.3d 424 (1989)
I make it a priority to assert on the record that the statement my client gives to the insurance company identifying them as the hit and run driver is made under the understand of privilege pursuant to Soltani and Travelers.
If you do things properly, then you can keep your client from being arrested and away from the courts. You will also be able to get his vehicle damage repaired by the insurance company with the hit and run claim. The police officer will have their suspicions, but without a statement of an independent witness to identify your client, they will not be able to make the case beyond a reasonable doubt. A deputy district attorney will mark the case as “sent back for further investigation.”
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If you’re an attorney and want the motions and demand for the car as a template or someone who just need a criminal defense attorney because of a failure to stop at an accident feel free to reach out to me at Hit and Run Attorney Near You. I am also listed in the Flock of Legals directory.