Are Drunk Driving Wrecks Different from Other Car Accidents in Virginia?

According to the Virginia Department of Motor Vehicles, in 2018 there were 7,181 alcohol related traffic crashes in the Commonwealth of Virginia. These alcohol related crashes resulted in 278 fatalities and 4,475 injuries. Even with information on the dangers of drunk driving being more available than ever, drunk driving remains a serious problem that can cause severe injuries and death.

EMT worker pushing a gurney

Drunk Driving Wrecks Are Different From Other Accidents in Virginia

When our Wythe County and Carroll County law firm is contacted by someone injured by a drunk driver, they usually want to know their options. A commonly asked question is what makes drunk driving accidents different that other wrecks. 

Criminal Case vs. Civil Case

When you are injured by a drunk driver, there are typically two separate cases that will happening at the same time or relatively close together. The intoxicated driver will likely be charged with DUI under Virginia Code 18.2-266 and could receive other criminal charges depending on the facts and circumstances of the case. These criminal charges will be prosecuted by the Commonwealth’s Attorney (also known as a prosecutor) of the locality where the crash occurred. The injured party may be called as a witness in the criminal trial and sometimes works with the Victim Witness Coordinator for the locality where the case is prosecuted.

The criminal case is important to the injured person’s civil liability claim. We will typically hire a court reporter to attend the criminal case hearings to transcribe the under-oath testimony of the defendant and other witnesses. We contact and interview the arresting officer and witnesses and attempt to obtain copies of any available police reports and body cam or dash cam footage. We also obtain a copy of the certificate of analysis which is used in the criminal case to establish the defendant’s blood alcohol level. 

Damages

A major difference with DUI related crashes and other accidents is the injured person’s damages claim. The injured person can claim the same compensatory damages as those injured in other accidents which consist of property damage, past and future medical bills, past and future lost wages, loss of earning capacity, past and future pain and suffering, and any disfigurement or deformity. 

In addition, a person injured in a DUI related accident can claim a unique form of damages called “punitive damages”.  Punitive damages are used to punish the defendant for the reckless and egregious behavior of causing a drunk driving accident and as a deterrent to others. Punitive damages are unrelated to other types of damages such as medical bills. Virginia Code 8.01-44.5 provides for a presumption of punitive damages when the following criteria are met:

  1. When the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; 
  2. At the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and
  3. The defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff. 

Depending on the facts of the case, there are other ways to claim and establish punitive damages without a defendant’s blood alcohol level at or above 0.15 but the above statute is the most commonly used.

What If the Defendant Refused to Take a Blood or Breath Test When Arrested for DUI? 

Virginia law requires a defendant operating his or her motor vehicle on any Virginia road to submit to a breath or blood test which will establish the blood alcohol level. Sometimes, the defendant DUI driver will refuse to submit to the chemical test when arrested for DUI. This refusal typically results in an additional charge to be prosecuted in the criminal case. But how can you establish that the defendant’s blood alcohol level was a 0.15 or more to claim punitive damages when they refused to take a test? 

In a refusal case, Virginia Code 8.01-44.5 allows us to establish a punitive damages claim when the following criteria are met:

  1. When the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; 
  2. At the time the defendant began drinking alcohol, during the time he was drinking alcohol, or when he was operating a motor vehicle, he knew or should have known that his ability to operate a motor vehicle was impaired; and 
  3. The defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent. 

The same code section allows the attorney to use a certified copy of the “Certificate of Refusal” from the criminal case to establish element number 2 above. Essentially, you can still establish a punitive damages claim even when the defendant has refused to take a chemical test and his or her blood alcohol level cannot be established. 

Insurance Coverage

The insurance claim in an alcohol related crash proceeds the same way as other accidents. Our experienced Hillsville and Wytheville car accident attorneys will analyze the facts and determine the various sources of insurance coverage for your claim. As in all accident cases, the injured party must establish that the intoxicated driver caused the accident to recover. 

Contact a Hillsville and Wytheville DUI Accident Attorney for Help

DUI accidents can cause serious injuries and death. Punitive damage claims are complicated, and our experienced attorneys can help you take the steps to pursue your case. If you have been injured by a drunk driver, call 276.728.3737 to speak with a Carroll County and Wythe County DUI accident attorney with The Jackson Law Group, PLLC. We offer free consultations to accident victims throughout Virginia. 

(c) The Jackson Law Group, PLLC 2019