Operating or driving a vehicle while drunk can result in harsh penalties that will have lasting consequences for a driver. A drunk driver, when convicted of the offense of DUI, risks losing their driver’s license, among many other penalties. A drunk driver is not only a danger to him or herself but for other people as well. In California, many accidents are as a result of drunk or impaired driving. Some of these accidents not only result in property damage but can cause significant injuries to others, and in more severe cases, they can lead to death. When you are involved in an accident, or your loved one is with a drunk driver, the law provides for you to get compensation for the damages and injuries you suffer. Speaking to a personal injury lawyer will help you with your claim. At San Diego Personal Injury Law Firm, we can help you with your claim against a drunk driver.

When to File a Lawsuit Against a Drunk Driver

The state of California allows victims of an accident caused by a drunk driver to sue them for injuries and damages caused. Every driver in California must have a minimum insurance cover that enables them to compensate their victims in case of an accident.

A person is said to be drunk when alcohol in their body impairs them from safely operating a vehicle. If you are hit by a drunk driver while suing them, you must prove two things as true:

  • The accused drunk driver was negligent
  • Because of their negligence, the victim was injured or suffered other injuries

A driver is said to be negligent under the laws of California when he ignores to give the duty of care to pedestrians and other drivers. The failure in using reasonable care and avoiding harming others while operating a vehicle is negligence.

The law can also deem a driver to be negligent per se. This happens when he or she disregards a statute or law that is designed to protect pedestrians and other motorists. This, in itself, means when a driver violates the law or ordinance, it is evidence of their negligence.

Negligence Per Se Law in California

Under the law this law, a driver is assumed to be negligent if:

  • They violate or disregard an ordinance, law or statute
  • Because of their violation, they cause injuries to a third party

As a plaintiff, when you introduce evidence that the drunk driver was negligent, they must prove certain elements to be true for their defense. These are:

  • The driver did not violate the law
  • Their violation was not the reason the plaintiff got injured.

DUI Laws in California

Several laws exist in California with regard to drunk driving and other intoxicated driving. Some commonly violated laws are:

DUI VEH 23152(a), (f), and (g)

The fundamental law on driving under the influence in California is found under VEH 23152. According to VEH 23152(a), it becomes a criminal offense to drive a vehicle while intoxicated by alcohol or drugs. When a person is intoxicated, their mental and physical abilities are not the same. This makes it impossible to drive cautiously as would a sober person.

VEH 23152(b) DUI Per se in Adult Drivers

Under this statute in California, it is a crime for any person over the age of 21 to drive when their alcohol BAC is 0.08% or more. To get the BAC percentage, a chemical test is administered on the driver. Usually, law enforcement officers use a breathalyzer or blood test to determine the alcohol in the driver upon lawful arrest. When a driver is suspected to be intoxicated by drugs, a blood chemical test is administered on them.

VEH 23152(d) Excess BAC in Commercial Drivers

According to VEH 23152(d), it becomes a crime for holders of commercial driver’s license to operate a vehicle when their BAC is 0.04% or more. This crime is often referred to as Excess BAC CDL. Commercial vehicle drivers are held in higher regard than regular drivers when it comes to ensuring road safety.

VEH 23152(e) DUI out of sharing a Taxi or Drunk Limo Drivers

Beginning July 1st, 2018, the state of California made it illegal for an individual to operate a vehicle when their BAC is 0.04% or more, and are carrying a passenger. This means a taxi driver or a limo driver should not operate their vehicle when intoxicated and are carrying a client. The law prohibits a drunk driver from carrying passengers.

VEH 23136 – Underage DUI

An individual below the age of 21 is prohibited from driving if their BAC is 0.05% or more. When a person is arrested for underage DUI, the penalties are more severe. The law does not require the person to be impaired to prosecute them for the crime. The only evidence needed in this case to get a conviction is the BAC levels of the defendant.

The state of California has a policy on zero tolerance to underage drinking. Found under VEH 23152, a driver below 21 is charged with an infraction if arrested driving with a BAC of 0.01% or more.

Although this would not be categorized as a DUI offense, it is taken to be a breach of the law on zero tolerance. When an underage is found to have any alcohol in their system and caused an accident, a civil suit brought against them would be considered as negligence per se. However, the victim will be required to prove the driver was impaired, and as a result, he or she caused the accident that caused damages.

Refusing to Submit to a Chemical Test VEH 23612(a)

The Implied Consent law in California is found under VEH 23612. This law states that when you drive in California, you have given your consent to undertake a chemical testing when legally arrested on a DUI suspicion.

When a driver is arrested for drunk driving suspicion, they must submit to a breath test to determine their BAC levels. A refusal to this is in violation of VEH 23162. When you are involved in an accident that results in damages, and the driver is drunk, a refusal to submit to the chemical test will be taken as negligence per se. In such a case, it is easy for the jury to believe the defendant refused because he or she was drunk driving.

Federal Safety Regulations

Just like in the state of California, the laws of the Federal government prohibits commercial drivers that drive from one state to the other from driving while intoxicated or impaired. A holder of a commercial driver’s license is prohibited from driving their commercial vehicle when:

  • They have a blood alcohol concentration of 0.04% or more
  • They are required to perform functions in safety when they are intoxicated

Regardless of the DUI violations, a driver does, a victim of an accident must show that the driver’s breach was the cause of their injuries.

When a Drunk Driver Causes an Accident, Must they Be Convicted for a Victim to be Compensated?

Whether or not a driver is convicted of a DUI offense, it does not in any way stop a civil suit. This means that a drunk driver will still be charged for damages and injuries in California, even when not found guilty of a DUI offense. This is made possible because civil liability laws and criminal laws in California are designed for different reasons and need different proof.

The Need of Evidence in a DUI Lawsuit in California

The existence of DUI criminal laws in California is to deter drunk or intoxicated driving and penalize drunk drivers. For a driver to be convicted of a DUI offense, the prosecution must show they are guilty of the offense beyond any doubt, and the twelve members of the jury must agree too.

The laws on civil liability are designed to compensate individuals that have suffered due to the acts of others. In a civil case, liability is only needed to be determined by a preponderance of the evidence.

With regard to this, it means the defendant was highly drunk and drove while intoxicated, injuring the victim. In this case, all the jurors do not have to agree. But, as long as nine do, it is a win for the plaintiff.

Can a DUI Conviction be used as Evidence to Show Negligence in a Case for Damages?

When a driver is convicted of a DUI, it is proved they were negligent per se. This is because a breach of the law on DUI in California involves the per se negligence. Even when the drunk driver pleads to a dry reckless instead of facing jail time, it will remain negligence per se.

Lack of conviction on a DUI offense does not affect the civil lawsuit. A defendant found guilty in a DUI civil suit does not mean they are guilty of a criminal DUI offense.

However, in a civil case, the defendant can show evidence that their impairment was not the reason for the injuries sustained by the plaintiff. The defendant in arguing his or her case can indicate that the crash was not because of their impairment. Additionally, the injuries suffered by the plaintiff were not because of the accident.

If the defendant is able to convince the court of this, damages may not be awarded to the plaintiff as expected. This means that a defendant is allowed to defend themselves to avoid paying damages to the alleged victim.

Damages Recoverable against a Drunk Driver Lawsuit

As earlier stated, if you have been injured following an accident with a drunk driver, you can move to court to seek compensation for damages suffered. Some of the damages a victim can recover include:

  • Medical bills – following an accident, a victim must go to the ER to get first aid and establish the level of injuries suffered. Whatever treatment a victim undergoes requires to be paid for. The medical bills or expenses a person incurs as a result of the accident can be compensated.
  • Psychological counseling – following an accident, some victims can suffer psychological trauma. This may require them to attend therapy until they can cope with the outcome of the accident. The costs of therapy are also sought after in a compensation suit.
  • Short and long term care – some injuries may require prolonged care, while others are not as serious. The cost of care, in this case, must be included in the compensation claim.
  • Cost of rehabilitation – when an injury is very significant, leading to the traumatic loss of a limb or injury of the spine, a victim may require rehabilitation. The cost of this should also be compensated for in a lawsuit.
  • Lost wages or earning capacity – during the recovery period, a victim may have to stay home and lose their earnings. Other injuries can be very significant that the victim will not be able to earn a living for the rest of their lives again. All these damages in a victim’s income are also sought after in a compensation case.
  • Suffering and pain – following an accident, a victim may suffer excruciating pain due to the injuries sustained. They may also suffer from not being able to do things as they used to due to the injuries. Although this cannot be quantified, the victim is allowed to seek compensation for the same.
  • Lost limb or use of a body part – an accident can result in the traumatic loss of a leg, a hand. This is a significant disfigurement that leaves a victim with a body part that doesn’t function like before. A victim, in this case, can also seek compensation for the loss.

In the seeking of these compensatory damages, the victim must prove that they indeed suffered the damages, and they were as a result of the drunk driver’s negligence.

Punitive Damages against a Drunk Driver

When an intoxicated driver injures a third party, the victim is permitted under the law to seek punitive damages against the driver. However, the victim must prove that the driver is guilty of fraud, oppression, or malice.

In drunk driving cases, malice is what is commonly used to seek punitive damages against a drunk driver. However, it is important to note that malice, in this case, is not based on bad or evil intent. According to the Civil Code of California 3294(c)(a), any behavior intended to cause injuries to a victim by a defendant that willingly disregards the safety and rights of others is malice.

A drunk driver can be accused of malice when suing for punitive damages. In this case, the victim will be expected to prove that:

  • The driver had knowledge of the possible consequences of their behavior and
  • Despite the knowledge, they deliberately disregarded the potential consequences.

According to the Supreme Court of California, malice in a drunk driver is fulfilled when:

  • A driver voluntarily consumes alcohol until they are intoxicated or impaired
  • The driver went ahead and consumed alcohol when he or she knew that they needed to drive after

When the proof of malice is established, the plaintiff will be able to get punitive damages in addition to compensatory damages.

Can a Victim’s Family Sue a Drunk Driver?

When a drunk driver has injured your loved one, the law allows for the family to seek damages for the injuries or damages sustained. Some of the damages a family would seek include:

  • Lost Consortium – here, the family will sue for the lost companionship, love, and guidance of their loved one
  • Wrongful death – compensation, in this case, will include burial and funeral costs, the victim’s life and the income they may have earned if they were alive

These losses are as a result of the financial support and companionship the deceased would provide to their family. The family can also recover punitive damages when their loved one was involved in an accident with a drunk driver.

When a One is Partially Responsible for a Crash with a Drunk Driver

Even when a driver was drunk, it does not always mean they were entirely responsible for the accident. The state of California follows the theory of comparative fault or comparative negligence. This means that the parties involved in an accident can share fault. The jury, in this case, is allowed to apportion or appropriate fault in an accident among the parties involved.

The state of California doesn’t need for the defendant to be at fault 50% in order to take responsibility. Even when the other party was slightly to blame, a plaintiff can still sue for damages against them.

Damages in California are also apportioned according to the degree of responsibility. When the fault is shared, the level at which it is shared is the same level, compensation for damages is shared.

Can Insurance Cover a Drunk Driver?

In California, vehicle insurance covers pay for damages when the policyholder is involved in an accident that causes injuries, and he or she was intoxicated. This means a victim can recover compensatory damages as listed above under:

  • The drunk driver's third-party vehicle liability insurance. This is only to the level the policy limits
  • The uninsured or underinsured auto policy of the plaintiff

There are instances where the plaintiff will sue the defendant directly. This is when:

  • Neither the drunk driver nor the plaintiff has insurance that can cover the accident
  • The total cover from all the policies applicable cannot cover the damages suffered by the plaintiff

Can Insurance Compensate for Punitive Damages?

According to the public policy of California, an insurer is prohibited from paying punitive damages to a victim. This means that when a victim successfully sues for punitive damages, he or she will seek damages from the accused directly. This is sometimes challenging where the defendant does not own any assets or money to pay for the awarded damages.

Regardless of this, insurers will compensate for the other damages, as stated by the law, that may include the cost of repairing the car or medical bills. With an experienced lawyer, the plaintiff can be advised if it is worthwhile to sue the defendant for punitive damages based on an assessment of their assets.

What you Should Do if Involved in an Accident with a Drunk Driver

When a drunk driver hits you, you will need to call the police to the scene immediately. When possible, obtain a copy of the police statement and the results of the chemical DUI test if administered and give them to your lawyer. This will act as evidence that the driver was drunk.

However, irrespective of the condition of the driver, there are standard steps a person must take following an accident. These include:

  • Unless you require medical attention, it is essential to stay at the accident scene until the arrival of the police. Leaving an accident scene, especially when a person has been injured, may lead to charges of hit and run.
  • Call for an ambulance or for emergency help if you are injured. The most important thing is your wellbeing. If you have sustained any injuries, seek medical attention immediately
  • Move to a safe place to avoid further injuries. If your car can move, take it to the shoulder of the road. If moving it is dangerous, leave it but ensure you wait from a safe distance
  • Write down the details of the vehicle that hit you. The information necessary in this case includes the vehicle license plate, the model, year, color, and make of the vehicle and the vehicle identification number.
  • Get the contact information of the other driver and give them yours as well. If there are witnesses at the scene, get their details as well.
  • Following an accident, never admit responsibility or fault. What you say following an accident can be used against you. Because you do not know what the other driver was doing to contribute to an accident, never accept responsibility or apologize for the accident.
  • Never say you are okay or unhurt. Let the doctor be the one to determine that. Some injuries may not be visible and are later discovered in the hospital.
  • Ensure to take photos of the accident scene if you are in a position to. Photos are essential in establishing the person responsible for the accident and damages
  • Write down your version of how the accident happened. This is important in your compensatory case and to avoid missing out any details
  • Document any injuries you have suffered as a result of the accident
  • Report the accident to the DMV or your lawyer can report it on your behalf
  • Inform your insurer of the accident and ensure to fill the claim forms
  • Ensure you hire a personal injury attorney to pursue your claims

Find a San Diego Personal Injury Lawyer Near Me

Drunk drivers are known to cause some of the most significant accidents in California. The injuries and damages from these accidents can be devastating physically, emotionally, and financially to the victim. Seeking compensation from an accident caused by a drunk driver is your right as a victim. The settlement, although it may not truly compensate for your injuries, goes a long way in ensuring a victim can cope with the aftermath of the accident. A personal injury attorney can help you seek for your deserved compensation. At San Diego Personal Injury Law Firm, we are experienced in ensuring our clients are well compensated following an accident. Call us at 619-478-4059, and allow us to discuss your case.