Civil Punitive Damages claims against Virginia Drunk Drivers

March 24, 2010

Virginia DUI

In addition to the extremely harsh penalties in Virginia for the criminal charge of DUI/DWI, anyone who is driving drunk and gets into an accident and injures another person is looking at the very real possibility of punitive damages in a civil lawsuit. These damages are in addition to what are known as compensatory damages in Virginia. Compensatory damages are that amount of money that a jury or judge determines will fully and fairly compensate someone who has been injured by someone else’s negligence. Punitive damages are meant to punish someone for either intentional conduct or willful and wanton negligence. Thus, even if you are covered by insurance, a punitive damages award could far exceed any insurance coverage and you will be personally responsible for the total amount of this punitive damages judgment. Furthermore, any personal injury damages awarded due to injuries caused by a drunk driver, even a punitive damages award, are not dischargeable in bankruptcy.
Punitive damages are also known as “exemplary damages.” Virginia Code Section 8.01-44.5 states:

In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff 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.
However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, 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 was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (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 was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent. A certified copy of a court’s determination of unreasonable refusal pursuant to § 18.2-268.3 shall be prima facie evidence that the defendant unreasonably refused to submit to the test.

The Virginia Courts have been extremely liberal in allowing those injured by drunk drivers to sue for punitive damages. In one case in Virginia federal court, the defendant had a BAC of .075 2 hours after the accident. This is not only below the legal limit of .08, but also ignores the typical elimination rate of alcohol from the body. Thus, at least one judge has allowed a punitive damages case to go forward when the only evidence of the driver’s BAC was below the legal limit. Also, if someone refuses the blood or breath test, the rquirement that someone be almost twice the legal limit does not apply. If the person refuses the blood or breath test and they are found to be intoxicated, they can be sued for punitive damages in Virginia.

About Bob Battle

Bob Battle “wrote the book” on DUI and Reckless Driving Law in Virginia. Bob has written a controversial free Consumer Guide to help those charged with DUI and DWI in Virginia to receive the critical information they will need to hire the right lawyer to defend them at trial. Bob Battle's consumer guide about Virginia's harsh Reckless Driving Speeding laws has been featured by local and national media. Read this book and see why the Baltimore Sun has said that Bob Battle is a lawyer "who specializes in getting out-of-staters off the hook for reckless driving" and why CBS-TV's Mark Holmberg raves, "Bob Battle wrote the book on Reckless Driving in Virginia!"

View all posts by Bob Battle

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