According to the National Highway Traffic Safety Administration (NHTSA)

About one in three people will be involved in a drunk driving accident during their lifetime.

This statistic is a big reason why everyone should at least research and have an understanding of how to move forward in the event of a drunk driving crash.

What is a Drunk Driver? What is Considered a Drunk Driver in Virginia?

This is an important question when looking to sue a drunk driver in a personal injury case. In a criminal case, a driver is considered drunk if they are at a BAC level at or above .08. However, in a Virginia personal injury case, they need to have a BAC level at or above .15. The threshold is almost twice as high.

What Evidence Do You Need to Win a Court Case 

In Virginia Code section 8.01-44.1, it is stated that in order to ask for punitive damages in a DUI case, you need to prove 3 things:

  • The defendant had a BAC of .15 or higher
  • The defendant knew or should have known that his/her ability to operate a vehicle would be impaired
  • The impairment led to the injuries 

If the driver refused to take a breath test completely, then the 3 factors above will automatically apply.

If the defendant has a history of drunk driving accidents, this will become admissible in court and given to the jury for consideration.

The Virginia cap on punitive damages is $350,000

What to Know Before Filing a Lawsuit

A civil suit can be filed against a drunk driver. Keep in mind that this can happen even if there was no accident or injury caused. However, if you are injured by a drunk driver, you have the opportunity to recover money to reimburse for medical bills, lost wages, damaged property, etc. On top of that, you can also file to recover funds for pain and suffering called punitive damages.

Punitive damages are similar to prison time in a criminal case. The purpose is to punish those in civil court who committed bad acts and prevent bad acts in the future. Contrary to popular belief, punitive damages are actually harder to recover than you may think. In fact, it is hard to receive punitive damages in court, so it is important to build a strong case before entering into court. 

Following an accident with a drunk driver, it is in your best interest to not settle immediately. The insurance company will want to settle before your case makes it to court because they will be worried that you will receive sympathy from the jury and it will be a losing battle for the insurance company of the defendant. This is why it is important not to settle right away. If you do settle, you will have to sign a liability waiver which will take away any opportunity of pursuing damages in the future.

If you do choose to move forward with a civil suit, make sure for certain that it fits with the 3 factors above. 

Watch Out For Contributory Negligence

In Virginia, Contributory Negligence plays a huge role in accident cases. Virginia uses pure contributory negligence unlike most states who have adopted comparative negligence. The defense will almost always push contributory negligence into the court in Virginia. They will basically say that, yes the defendant was drunk, but you, the victim, still played a role in the accident. i.e. you ran a stop sign, or a red light, failed to yield, etc. It is important to know that the drunk driver has to be found as one hundred percent responsible for the accident. Yes, this means even if you are found to be one percent responsible and suffered hundreds of thousands of dollars in damages, you will recover nothing in punitive damages. Collecting punitive damages from drunk drivers is not easy.

This is why building a solid case is extremely important before going to court against a drunk driver. The reality is that the case will not always be cut and dried. Build a strong case, and be ready to have evidence at the ready to prove that you had zero responsibility for the accident. 

Brian Glass
Virginia personal injury lawyer selected to SuperLawyers Rising Stars List and the NTLA's Top 40 Under 40.