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Do I Need to Go to the Drunk Driver's Criminal Hearing?

    This is really a two prong question: Do I have to go to the Criminal Hearing and Should I go to the criminal hearing of the Drunk Driver. The answer to the first question is that you have to go if you receive a subpoena from the solicitor (misdemeanor prosecutor) or assistant district attorney (felonies). You will normally receive a subpoena if the drunk driver is fighting the criminal charges. What normally happens is that on the first court appearance the drunk driver will plead either guilty or not guilty. If he pleads guilty you will not have to be present and the criminal case will be over. If he pleads not guilty and asks for a trial, then as a witness to his drunk driving and a victim you will need to be present. I can tell you that the vast majority of these drunk driving cases do not go to a full criminal trial. Frequently, a drunk driver may delay the hearing and resolution, but at the last minute, they plead guilty. Even after you receive a subpoena you should call the day before trial and check to see if the case has been resolved or if you can be put on a 2 hour call status. This can allow you to go to work and only show up if you are needed.


     What happens if you don’t show up after receiving a subpoena? You could be held in contempt of court by the judge for not showing up. This is bad and can result in your own criminal charges. Additionally, sometimes the judge will dismiss the drunk driving case for "want of prosecution" or for no one being there to prosecute. So if you receive a subpoena, call the court to see if you need to show up as a witness and victim.


     Should I go to the hearing? If the case goes to trial then yes you should go as a witness. Should you go because you expect to get some resolution or have an impact on the sentence the drunk driver receives? No. My experience has been that many times, there is very little that happens when the drunk driver’s victim speaks at the criminal hearing. Years ago, I used to recommend to my clients to attend the hearing. I would even go with them as morale support and to talk to the judge and solicitor. I have done this numerous times. I have never been fully happy for my clients and neither have they.


     Ex 1 . I had a young couple that was hit by a drunk driver in Riverdale, Georgia, near downtown Atlanta. The husband suffered "whiplash" or back and neck injuries. The wife however suffered a broken back. Her injuries were "fixable" but she had to wear a "halo" harness. This is a metal halo that is screwed into the skull; a metal rod goes down the outside of her back and then screws into her back, preventing her from moving the injured area. This is very painful and causes a huge change in a person’s life during the healing process. We went to court for the first hearing.

     I spoke to the solicitor and he even took me, my two clients and the defense attorney to speak to the judge. This judge listened to our story, saw my clients and took the time to hear about their injuries. He told the drunk driver’s attorney that he was not going to accept the normal drunk driving plea – 48 hours in jail, 40 hours community service and a fine. He was going to impose a harsher sentence because he almost destroyed my client’s lives. I was happy. My clients felt that justice was being done. We did’t know what the end result would be but it seemed like we were headed in the right direction.  No sentence was given at this hearing.  Shortly after the hearing, the drunk driver’s defense attorney had the case transferred to a superior court. The victim’s advocacy group did not notify either me or my clients (the drunk driving victims) about the change in judge. We were then contacted and told that the drunk driver had pled guilty, there was no need for my client’s to testify.

     We were told that the best deal the solicitor could get was – 48 hours in jail, 100 hours of community service and the fine since this was the first DUI conviction for the drunk driver. The difference in this case and a "standard" DUI was that the drunk driver had to do an extra 60 hours of community service. A deal that was done without the drunk driving victims ever being contacted. So the only difference in a police officer stop drunk driving conviction and the one where my clients were injured and suffered a broken back was 60 hours of community service. The drunk driver was done being punished before his victim had even gotten out of the halo harness, much less healed.


     I have had other cases with similar results. Even when the victim has been injured worse than the above example the punishment is not usually anywhere near serious enough to make my client’s feel like Justice was done. I no longer recommend my client’s depend on the criminal case to bring them closure or feel as if the drunk driver was punished. I no longer go to these drunk driving hearings. I no longer recommend to my clients, the drunk driving victims, that they go to the hearings unless a witness.


     The place for closure and justice is the civil court case. This is where we seek punitive damages against the drunk driver. These punitive damages are legally allowed by Georgia law to punish the criminal or drunk driver for drinking and driving and injuring someone. Most insurance companies still cover punitive damages in the car insurance policies issued in Georgia. The civil case is where you as the victim can have a significant impact on the case. You get to decide does the case settle or not. You get to decide does a lawsuit get filed. You get to decide if we settle at mediation or arbitration. If not, then you get to testify to the damages you received, your injuries, and what impact the drunk driver’s conduct had on your life.


Shane Smith
Advocate for the Seriously Injured in Georgia