I Was Hit By a Drunk Driver. What Are my Rights?

I was hit by a drunk driver, now what?

If you’ve been involved in a serious car accident, you may have been struck by a driver who was drunk or under the influence of some other substance like medication, or an illicit drug like cocaine, PCP, or methamphetamines.

Your rights and remedies will change based on the state that your crash happened in.  At TLT Legal Services, we help people in DC, Maryland, and Virginia who have been involved in car crashes with drunk drivers and defendants charged with driving under the influence of drugs or alcohol or driving while intoxicated by drugs or alcohol.

It’s important to hire an attorney who knows what your rights and remedies are in the state where the crash happened.  The person who caused the car crash may be ticketed, fined, put on probation, or serve jail time.  So what does that mean for you?

Virginia

Virginia is very friendly to people who have been injured by a drunk driver or an intoxicated driver.  You can get compensation for your own injuries, medical bills, lost income, and pain and suffering.  But you can also get punitive damages.  This is a sum of money that the drunk driver is ordered to pay as a punishment for their egregious or willful and wanton conduct and to serve as an example to other people not to act that way.

In Virginia, the drunk driver’s car insurance may be liable to pay punitive damages.  And if your own underinsured motorist coverage comes into play, it may be liable to pay punitive damages as well.

There are two ways to make a claim for punitive damages in Virginia.

By statute, Virginia Code 8.01-44.5 allows you to seek punitive damages if…

A. The Defendant had a BAC of 0.15 or higher

(1)  They had a BAC of 0.15 or higher at the time of the crash

(2)  At the time the defendant began drinking alcohol, or during the time they were drinking alcohol, they knew or should have known that their ability to operate a motor vehicle, would be impaired, or when they were operating a motor vehicle they knew or should have known that their 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.

B. The defendant refused to submit to test of their blood alcohol content

This means that you automatically have a right to ask a judge or jury to award punitive damages against a drunk driver.

What if neither of these apply?  You can still make a common law or statutory claim for punitive damages.  You must show that the drunk driver’s conduct of drinking and driving is so willful or wanton as to show a conscious disregard for the rights of others.  In Virginia as long as your attorney properly pleads these elements (and you can show them at trial!) you will have the right to ask a jury to award punitive damages in addition to compensatory damages like medical bills, lost wages, and your physical and emotional pain and suffering.

DC

DC does not have a statute that automatically allows an injured person to seek punitive damages.  Instead claimants must rely on common law interpretations of when punitive damages may be awarded.

Generally speaking, a judge is not going to allow a person to make a claim for punitive damages against a drunk driver.  The injured person must prove that

(1)  that the defendant acted with evil motive, actual malice, deliberate violence or oppression, or with intent to injure, or in willful disregard for the rights of the plaintiff;

AND

(2)   that the defendant's conduct itself was outrageous, grossly fraudulent, or reckless toward the safety of the plaintiff.

Most judges will say drinking and driving does not meet these requirements.  As an attorney, if you are hit by a drunk driver, I will always make this claim and argue that the specific facts of your case meet these requirements.

The reality is that you’re not likely to be compensated with punitive damages when you’ve been hit by a drunk driver in DC.

Maryland

For a long time Maryland allowed people hit by drunk drivers to ask a jury for punitive damages.  That all changed in 1992 when the Court of Appeals (now Supreme Court of Maryland) decided that punitive damages could only be awarded for intentional acts where the specific intent was to hurt you. 

There was one justice on the court, however, that felt the act of drinking and driving was the intentional act that should allow an injured person to ask for punitive damages.

If you allege that the person intended to hit you with their car, then their insurance company won’t pay out anything because it doesn’t cover intentional acts; only acts of negligence and recklessness.