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Special Rules Apply When Drunk Drivers Injure Virginians

Few things paint a starker picture of the terrible toll that drunk driving takes in a typical year than these statistics compiled by the Virginia Department of Motor Vehicles during 2017:

  • 7,265 alcohol-related crashes
  • 248 people killed, including 28 passengers and 55 pedestrians
  • 4,430 injuries

 

 

Left out of those DUI numbers is the reality that the odds that a driver will crash and inflict injuries or take lives increase in direct proportion to a driver’s blood alcohol concentration. A review of studies on the relationship between BAC and fatal crash risk determined that on average, the likelihood that a person driving under the influence will die or kill someone else goes up by about 75 percent with “every 0.02 percent increase in BAC.”

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The danger becomes especially acute at nearly twice the legal limit for driving, As my Virginia personal injury law firm colleagues and I note elsewhere on our website, at a BAC of .15 or above, drivers experience

  • Gross motor impairment and lack of physical control
  • Blurred vision and major loss of balance
  • Impaired judgment and perception
  • Nausea and vomiting

In recognition of this, Virginia law specifies that victims of extremely drunk drivers -- those with a measured post-crash BAC of .15 or higher -- have a presumed right to seek both compensatory damages and punitive damages. Compensatory damages cover the direct costs of recovering from a motor vehicle accident, such as medical bills and lost wages. Emotional distress, or so-called pain and suffering, also get classified by courts and insurance companies as compensatory damages.

Punitive damages, on the other hand, are noncriminal fines that get assessed over and above any other payments a drunk driver must make to a victim. The law that authorizes seeking punitive damages against a drunk driver bears quoting at length for what it says about the harm very intoxicated people can do when they get behind the wheel:

 

The finder of fact [i.e., a judge or jury] may, in its discretion, award punitive damages to the plaintiff [i.e., a person injured or killed] if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others. A defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) 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; (ii) 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 (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff.

 

It is also interesting to note that the terms “willful and wanton” echo the definitions many states use for reckless driving. The Virginia statute on reckless driving includes broader terms, specifically, “Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.”

Despite the differences in word choice, it is worth stressing that driving under the influence of alcohol is a reckless act. It prevents the intoxicated person from exercising the care and caution needed to protect “life, limb and property.” This is the reason my colleagues and I pride ourselves on only suing, never defending drunk drivers.

EJL

Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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