Virginia Personal Injury Law: Hit by a Drunk Driver
This guide summarizes the most significant, basic law in the Commonwealth of Virginia on drunk drivers and car collisions. If you or someone you care about was harmed by a drunk driver, these are BASIC concepts that are likely relevant to the case.
Who is a drunk driver? (this is not a trick question)In Virginia, a driver is presumed to be intoxicated - in a criminal case at least - if they are at or above .08 BAC by weight by volume. In a personal injury case, it isn't that simple, although it probably should be...but it is up to the General Assembly to make those changes.
In a personal injury case, in order to - as a right - present evidence of intoxication to a jury, the defendant must have a BAC of .15. That's right...in a personal injury case the threshold is almost twice as high.
This limit is contained in Virgina Code section 8.01-44.1, which essentially says that in order to put on evidence of intoxication, and ask for punitve damages, you have to show that (1) the defendant had a BAC of .15 or above; (2) that when the defendant started drinking, he knew or should have known that his or her ability to operate a motor vehicle would be impaired, and that (3) the impairment led to the injuries. Or that the defendant refused to take a breath test altogether.
So, someone can cause an accident, be convicted of a DUI, and have a BAC that is low enough so that a jury might never hear about the defendant's drunk driving. Seems off, right? The theory, or at least a theory, is that if a defendant accepts liability for the collision (as they would almost always do) in a case where the BAC is lower, the evidence of alcohol would so inflame the passions of the jury that the verdict would be excessive.
So, when it comes to a personal injury case, who is a drunk driver is not as clear cut as we might hope.
What if the drunk driver has a BAC below .15 by weight by volume?You can walk it back with a toxicologist, provided you have an
One such case that allows plaintiff's attorneys to utilize a
toxicologist to state the BAC at a particular time is Woods v.
Mendez, 265 Va. 68, 574 S.E.2d 263 (2003); "*the above language
[in 8.01-44.5] requires proof of a defendant's BAC at the time of
the incident and does not stipulate any particular method of
proving this fact."
Defense attorneys have argued the case of Kessee v. Donigan, 259
Va. 157 (2000) in an attempt to state that there is no "average"
absorption or elimination rates with regard to alcohol.
However, toxicologists will readily state that while absorption
rates may vary, elimination rates are a matter of physiological
fact, and the only real variance (which can be accounted for by
conservative application of toxicological principles) is whether the
liver of the drinker is efficient at processing alcohol, as in the case
of a frequent drinker, or inefficient. Either way there is a predictable physiological range of elimination, which is unaffected by injury, age, gender, or race.
So, there are ways to prove the case, even if the BAC is below .15 by weight by volume. I have done this at trial, and a jury was able to hear evidence when the level was lower. It can be done in the right circumstances.
There are also "Common Law" punitive damage relating to drunk driving, but facts supporting those cases are more unusual and case specific. An attorney can address whether or not those are applicable in a particular case.
What are Punitive Damages?They are designed to punish and deter.
"The purpose of punitive damages is to provide 'protection of the public
... punishment to [the] defendant, and ... a warning and example to deter
him and others from committing like offenses.' " Huffman v. Love, 245
Va. 311, 315, 427 S.E.2d 357, 361 (1993) (quoting Baker v. Marcus, 201
Va. 905, 909, 114 S.E.2d 617, 620 (1960)). This Court has observed that
punitive damages are meant to warn, not to compensate the plaintiff.
Doe v. Isaacs, 265 Va. 531, 539, 579 S.E.2d 174, 179 (2003). Coalson v.
Canchola, 287 Va. 242, 754 S.E.2d 525 (2014).
In Virginia, a plaintiff may receive up to $350,000 in punitive damages in a drunk driving case, where the Court allows the instruction on punitive damages. The damages are "capped" at that amount.