Drunk Driving in Virginia – Can I get More Money if I’m Hit by a Drunk Driver?

Posted on Friday, January 3rd, 2020 at 2:53 pm    

In Virginia in 2018, according to the DMV, there were about 819 overall fatalities due to motor vehicle crashes. Out of those, 262 deaths, or about a third, were due to drunk driving

Drunk Driving Kills. Period. 

Perhaps you, a loved one or someone you know has been injured or killed in a car accident caused by a drunk driver.  

First of all, if that is the case, I am very sorry this is happened to you.  

Maybe part of you feels that you would like to make sure that this person– this idiot– who decided to break the law in such an egregious way by getting into a multi-ton automobile and drive while drunk should be not just sued, but punished.   Punished beyond the normal way that people are punished when a claim is made against them for damages for injury or death. Not just with a slap on the wrist. 

So that perhaps people will hear about this and be deterred from driving drunk.

Well, our lawmakers here in Virginia were well aware of this feeling and passed laws that make it easier for you or your loved ones who were injured to recover more damages than usual in a case where the defendant was driving drunk at the time of the accident.

The law says that in certain circumstances, in addition to regular damages, a jury may award something called punitive damages. These damages are in addition to the normal damages that a jury might award an injury case, such as for medical bills, lost time from work, and pain and suffering.

Punitive Damages are awarded where the defendant’s conduct is so bad that it shows a conscious disregard for the rights of others. This bad conduct is referred to in the law as “willful and wanton” conduct.   What does that mean?

The good news is we don’t have to worry about what that means, because the law sets it out by way of statute, by giving the injured person a series of presumptions they will be entitled to. 

What does that mean, a presumption? That means that if you’re injured, or a loved one has been killed and been hit by a drunk driver and you prove these particular things, you are going to be entitled to have the jury find an award in your favor against the defendant, for punitive damages. 

The bad news is that if you don’t get to the level of these presumptions, you’re probably not going to have a punitive damages case in Virginia. Why? Because the Supreme Court in Virginia is pretty picky about awarding punitive damages outside of drunk driving cases. 

What kind of presumptions are we talking about?

The first is that there is a presumption that the defendant acted willfully and wantonly, if, at the time of the accident, the defendant had a blood alcohol level of .15, either by blood or by the breath method.  Along with that, you must prove that the fact that the person was drunk at the time of the accident was a proximate cause of the accident. 

Of course, there must be a certificate of analysis presented according to the law in order to prove this blood alcohol concentration of .15 or above. 

Now many of you probably already know that the legal limit to be considered intoxicated in Virginia at this time is a blood alcohol concentration of .08.  But that’s not enough to get you this presumption in Virginia. That’s because generally in Virginia, as I mentioned a minute ago, punitive damages are not favored. In other words, the Supreme Court of Virginia does not like to grant them and will routinely strike down cases where people are trying to show punitive damages.

But once you can prove these presumptions, it should not be a problem getting to punitive damages, because once you get a .15 BAC, it’s also presumed that the person basically knew that if they drank and got in a car that their ability to operate that vehicle was going to be impaired. That means they were by definition engaging in willful and wanton conduct, and there is your punitive damages claim.

By the way, this also applies to someone operating a motorcycle or a locomotive, not just a car. 

What if you are just shy of the amount? In other words, what if the certificate comes back and it says defendant’s BAC was .13 or .14? Does that mean you don’t have a punitive damages case?

The answer that is usually no, you still may have a punitive damages case. Why? Because you must remember that most of the time when the blood alcohol test is given, hours have passed since the defendant was hauled away from the accident scene by police. 

During that time, the alcohol in his or her system has continued to metabolize. 

Remember, the question is not what the blood alcohol concentration of the drunk driver was two hours later when their blood was drawn and the test given. The question is what was the blood alcohol concentration of the drunk driver at the time of the collision?

How do you prove that?  By obtaining the services of an expert such as a toxicologist, your attorney can prove in court that in fact, even though the certificate came back at a .13 or .14, that in fact the defendants BAC levels likely exceeded the .15 threshold at the time of the accident. There are several toxicologists out there who are very knowledgeable about blood alcohol concentrations, and routinely give their testimony in court. 

So– is the .15 blood alcohol level the only potential presumption in a drunk driving injury case?

No, there is also a presumption that if you can prove the defendant unreasonably refused to submit to either the blood or breath test, and you can prove they were drunk at the time of the accident by other evidence such as field sobriety tests conducted by the police officer at the scene, then you can get to punitive damages Award by the jury that way as well.

How much can you potentially get for punitive damages in Virginia? 

Currently, in Virginia there is a cap on the amount of punitive damages in VA, which is limited to $350,000.00

But remember, this amount is in addition to whatever award the injured person is given for their regular damages, which may consist of payment of medical bills, lost time from work, and pain and suffering.

Now just as a reminder-and this is so important that it bears repeating over and over again -remember that even though the damages from a drunk driving car accident or any catastrophic wreck might be horrific, as a practical matter, you are always going to be limited to whatever motor vehicle insurance coverage is available in the case. That means if the defendant is driving around with the minimum limits in Virginia of $25,000—which I can tell you many folks are– and your underinsured coverage does not exceed that amount, then that is all you’re going to get, even if you have $1 million in medical bills from the accident.

Please, please do not fall for these ridiculous commercials constantly on TV promising you lower rates. Sure, you may have lower rates, but what policy did you buy, what coverage do you have? Sure, they’ll save you 15% in 15 minutes if you’re going to buy a piece of junk policy, compared to something that gives you sufficient coverage.

I implore everyone, please buy as much car insurance coverage as you can possibly afford, preferably at least $300,000 in liability, uninsured, and UIM coverage.  That coverage is there to protect you in the event you are loved one or in your household is hit and injured severely by someone who was driving around with low or no insurance coverage. 

Joe Miller, Esq. of Joe Miller Law, Ltd, has been representing the injured for over 30 years in Virginia. He routinely helps victims of drunk drivers with these cases. If you are a loved one has been injured by a drunk driver please do not hesitate to call us at 888-667-8295 or utilize our contact form.  Also, if someone close to you has been killed by a drunk driver, we can help with that as well by representing the Estate of the victim to recover damages for those left behind, those whose lives have been shattered by a careless drunk driver.