In my office, potential criminal matters (such as DWI/DUI) take precedence and I would refer that person to a criminal attorney first. You may have a claim for injuries/property damage, but in my opinion, the person's personal freedom should come first.
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I am not sure what your asking. Are you asking whether a drunk driver has a claim for serious physical injuries against a non-drunk driver who was at fault? If so, the answer is that the injured, drunk, not-at-fault driver does have a valid claim. Sources of payment of this claim could be the other driver's insurance or, perhaps, the drunk driver's own uninsured or underinsured motorist coverage.
However, if this just happened the more urgent legal issue is the criminal charge against the drunk driver and his lawyer might logically work on that issue first.
Incidentally I have referred to the driver with the .09 BAC as the "drunk driver" just for clarity. We should not assume automatically that a person with a .09 BAC is "drunk." There may be difficult to make but potentially valid defenses such as poor calibration of the measuring equipment.
It is not clear what you are asking. Please re-word.
Disclaimer: I am a lawyer licensed in the State of Illinois only, and I am not your lawyer (unless you have been in my office and signed a contract). This communication is not intended as legal advice, and no attorney client relationship results. Please consult your own attorney for legal advice. This is for informational purposes only.