If you or a loved one have been severely injured in an accident, it is likely you want the at-fault driver to be punished for their negligence or carelessness on the road. In fact, pursuing a criminal charge can actually help you or your loved ones seek compensation for a personal injury claim. By taking a few simple steps, you can be sure that the criminal case against the at-fault party is not dismissed before your personal injury claim is resolved.
Before we get into the details regarding how to guarantee that the criminal charge is not dismissed before your claim settles, it is important to understand why doing this is helpful. In North Carolina, almost all personal injury claims are based on the legal theory of negligence. A person is negligent when he or she acts in a careless or legally improper manner and another person is directly or proximately harmed or injured as a result of the person’s act or omission.
In order for you to establish a case for negligence against a third party, the following four (4) elements must be proven:
For more information on negligence, please visit the following LINK. [Link to Negligence Article].
These four (4) elements can be summed up as (1) duty (2) breach (3) causation, and (4) damages. By attempting to prosecute the at-fault driver for a criminal citation that he or she may have committed, you may have already won half the battle in establishing your negligence claim. In other words, if you are able to establish that the criminal violation was related to an event or circumstance that caused or contributed to the accident’s occurrence, then you will already be able to establish the first two elements of negligence (duty and breach). Using a criminal citation to establish the first two elements of negligence is known as negligence per se. By establishing negligence per se, you will then only have to establish the last two elements of negligence in order to prove your personal injury claim (causation and damages).
It is essential to note that the citation given to the at-fault driver must have caused or contributed to the accident’s occurrence. For example, imagine that an accident victim alleges that the at-fault driver was negligent for failing to wear a seatbelt. This type of citation would not assist in proving that the at-fault driver caused the victim’s injuries. The fact that the at-fault driver failed to wear his seatbelt did not cause or have an effect on the occurrence of the collision that caused injuries.
First, in order to determine whether the at-fault driver was actually cited for any criminal infractions, you should obtain a copy of the police report, also known as the DMV-349. The crash report is generally available from the DMV within 24 to 48 hours; however, the police officer has 10 days to complete the report. For more information as it pertains to understanding your police report, please visit this page.
Once you have received a copy of your police report, on the bottom of the second page you will find a section entitled “Traffic Violations.” Under that section, you will see on the left hand side the name of the cited driver and then the charges listed directly to the right. If the at-fault driver is listed with a charge that caused or contributed to the occurrence of your accident, you will want to proceed with attempting to have the charge prosecuted.
Once you have received the DMV-349 report and found that the at-fault driver was indeed charged with a traffic violation, the next step is to write a letter to the District Attorney in the county where the at-fault driver was cited. This letter should be sent within a couple of days of your accident or the day you receive your DMV-349 report.
The letter should be addressed to the District Attorney and should include your name, a brief statement of the facts, the date of the accident, the name of the at-fault driver who was cited, the charge listed on the DMV-349 report and the date of the court hearing. You can find the date for the scheduled court hearing on http://www.nccourts.org/.
Furthermore, the focus of your letter should be to request that the District Attorney not dismiss the charge against the at-fault driver until liability has been accepted and your personal injury claim has been resolved. You should also request that the District Attorney prosecute the charge; however, it is recommended that you refrain from taking a position in regard to the penalty for that charge. In other words, you assert that you do not have an opinion as to the amount of fines or potential jail time the at-fault driver may face. Unless you are aware of the potential penalties for a charge, we recommend taking no position as to the punishment—leave that up to the court’s discretion.
Lastly, be sure to provide your contact information and request that the District Attorney acknowledge your letter. You may need to call the District Attorney’s office to confirm that the letter has been received and to request that an acknowledgment letter be sent to your address. Always request the acknowledgment of your letter in writing so that you will have a copy of the letter for your records.
Once the District Attorney has acknowledged your letter in writing, your job is still not done. It is not uncommon for a criminal case to be pushed back (continued) several times before the case is resolved. Due to this and the enormous volume of cases handled by a District Attorney’s office, your letter could get removed from the case file and forgotten. In order to prevent this from occurring, you should follow up with the District Attorney’s office before each and every court date. You can find out if a case has been continued on http://www.nccourts.org/. You should check the website regularly for updates regarding the at-fault driver’s case. If you have noticed that the case has been continued, you should call the District Attorney’s office and request that your letter remain in the case file. Furthermore, you should resend a follow-up letter, acknowledging that the case has been continued and that you would like your letter to remain in the file. You should include a copy of your original letter with each follow-up letter.
Lastly, to ensure that your letter does not get removed from the case file, you should check the “shuck” at the court house where the case is to be heard. The “shuck” is essentially the court file that will be seen on the day the case is scheduled. Checking to see that your letter is in the “shuck” will ensure that the person handling the case will see your written request. To confirm that your letter is in the “shuck,” you will need to speak to the criminal clerk of court or speak to the Assistant District Attorney and identify yourself as the victim in the matter.