According to the National Highway Traffic Safety Administration (NHTSA), approximately 10,511 persons died in drunk driving accidents in 2018, accounting for 1/3 of total crash fatalities that year. Drunk driving is a severe epidemic and should be treated that way. If a drunk driver has injured you in Orange County, the defendant might be arrested and punished with incarceration, fines, and suspension of driving privileges. However, California will not compensate you for the losses incurred. You can only start your financial recovery process by filing a personal injury claim in civil court. Here is a comprehensive guide on how to claim your damages from a drunk driver.
Can You Sue an Intoxicated Driver for Damages?
California allows individuals to take legal action against an intoxicated or drunk motorist that injures them. A person is deemed drunk when drugs or alcohol impair their ability to drive their motor vehicle safely.
To recover damages, you must establish that the driver was negligent using the following facts:
- The defendant owed you the duty of care
- The defendant breached the duty
- The breach caused you injuries
While California does not have a legal definition of duty of care, individuals are lawfully required to prevent foreseeable harm or injuries to others when it's reasonable for them to act so. For instance, drivers should comply with traffic laws to avoid collisions and injuries to other road users.
Additionally, a motorist can be considered "negligent per se." "Per se" means "of itself." "Negligence per se" happens when the driver violates a statute or law tailored to safeguard other road users. In layman's language, violation of the law is, in and of itself, evidence of negligence.
The accused is presumed negligent per negligence "per se" California law if:
- They violate the law, ordinance, or statute, and
- The violation resulted in injuries.
After you present negligence per se evidence, the intoxicated driver should establish that:
- They didn't break the law, or
- Their violation did not lead to your injuries
California Driving Under the Influence Laws
The state has numerous laws linked to drinking or taking drugs and driving, including:
- Driving under the influence (VC 23152(a)) — Driving a car after taking alcohol or using drugs is illegal. An individual is considered under the influence when their mental or physical capabilities are affected and they cannot operate the vehicle like a careful sober individual.
- VC 23152(b) — It is illegal for a person above twenty-one to operate a car with a blood alcohol concentration greater than 0.08 percent. Usually, a chemical test (blood test or breath test conducted during the arrest) measures the BAC.
- Underage DUI — It is a crime under VC 23140 for a person below twenty-one years to operate a vehicle with a blood alcohol concentration greater than 0.05 percent.
- Zero-tolerance law— Under VC 23136, it's a California infraction for a person below twenty-one to drive with any amount of alcohol in their bloodstream. It is more of a law violation than a DUI. Therefore, when a driver tests positive for alcohol in the bloodstream, they will be deemed negligent per se if legal action is taken. However, you, the plaintiff, should verify that the defendant's impairment caused the accident. It might be challenging if the defendant only violated Vehicle Code 23136.
- Driving while addicted to a drug — VC 23152(c) makes it an offense for an individual addicted to a drug to operate a motor vehicle. It also includes over-the-counter and prescription medications. Nevertheless, there exists an exemption for persons engaging in court-ordered narcotic treatment programs for opioid dependence.
- Excess BAC commercial driver's license — VC 23152(d) prohibits a driver from operating a commercial vehicle with a blood alcohol concentration of at least 0.04 percent. Commercial motorists who drive between states should also adhere to federal motor carrier safety laws.
- DUI by ride-sharing, limo, or taxi drivers — VC 23152(e) makes it a crime for a person to drive with a blood alcohol concentration greater than 0.04 percent when they have a passenger for hire in the car.
Irrespective of the statute the intoxicated driver broke, you should establish that the conduct led to your injuries.
What You Might Recover from the Drunk Driver
Personal injury laws are tailored to make the plaintiff whole again. When a person brings a claim, they request the judge to award money or damages to compensate them for the losses incurred and restore them to where they were before the accident.
While you cannot return to your physical condition before the injury or bring back your loved one who died, the award should restore the bank account. It should at least offer money to foot medical expenses, ongoing therapies and treatments, costs for help with everyday activities, and costs related to your injuries such as pain and suffering.
Here is a look at different forms of damages a plaintiff can recover in a personal injury claim.
Compensatory Damages
These are funds you can obtain to compensate you for the costs or financial losses associated directly with your injury.
They can be either economic or non-economic damages. Generally, economic damages are lost income, property loss, and medical bills. On the other hand, non-economic damages can be emotional distress, loss of enjoyment of life, loss of consortium, and pain and suffering.
Here is an overview:
- Medical bills — Your personal injury claim award might include medical attention costs to compensate for what you have already spent and pay your expected future costs. The Orange County Personal Injury Attorney legal team can work with medical experts, actuaries, and accountants to determine future medical needs and their costs.
- Property loss — You have a right to the fair market value of all property lost, including your car and other belongings.
- Income — Lost income award would include the reduction in salary if you had to take another job different from the one you had before your collision, loss of earning capacity, and time you took off from work after your accident. Loss of earning capacity means the variation between what you would have made for the rest of your life and what you'll make due to your accident.
- Loss of enjoyment— It is possible that you can sleep, function, and eat but cannot enjoy time or participate in activities you previously enjoyed following your accident. If that is the case, you could qualify for the loss of enjoyment damage award.
- Pain and suffering compensates for the mental anguish and physical pain that the plaintiff suffered due to the injury. It can include humiliation, mental anguish, inconvenience, and emotional distress.
Families of victims hit by a drunk motorist can also receive damage in a personal injury claim. Typical bases for compensation include:
- Wrongful death
- Loss of consortium
- Survival action
These grounds of compensation stem from the loss of financial support and companionship of the loved one.
Determining how much you should claim in damages after your accident is a challenging task that requires legal assistance. Your car accident attorney can assist you in knowing a reasonable demand based on the professional opinions of financial and medical experts and previous cases they have handled.
The money you obtain from your personal injury claim isn't taxable under both federal and state laws. It applies to compensation for both non-economic and economic damages.
How Pain and Suffering Damages are Calculated
Pain and suffering is a non-economic loss, and it doesn't have a fixed method for deciding the dollar value for the award. You should prove that you suffered mental pain or physical injuries before the jury/judge decides the dollar value for this damage.
You can use the following objective evidence to prove these damages:
- Photos of your injuries and property damage that show the seriousness of your injury
- Detailed physician's notes
- Social media posts, emails, and texts
- Diagnostic images such as x-rays
- Medical bills and records demonstrating the level of medical care you have received
- Videos showing your activity level before and after your injury
- Testimonies of your loved ones
- Expert testimonies regarding your lost earning capacity, physical injuries, and medical suffering
- Proof of lost income
One of the ways of calculating these damages is using a multiplier method. In this case, you add all your economic damages together and then multiply the figure by a number between one and five. The multiplier depends on the seriousness of your injury. Typically, plaintiffs might use higher multipliers in personal injury claims involving:
- Severe pain
- Lifelong medical attention
- Lost income because of a disability
- Reduced life quality
- A severe injury involving fractured bones
You can also calculate these damages using a pier diem method. You, the insurance firm, and your lawyer will calculate a precise amount for every day you experience pain and suffering due to your injury. Your daily rate is determined by using your daily earnings before your accident.
Punitive Damages
If the defendant's conduct was careless or egregious, the judge could decide to punish the drunk driver. In this case, the judge awards punitive damages.
To receive punitive damages, you should provide persuasive proof that the drunk driver was guilty of malice, fraud, or oppression.
As far as this context is concerned, malice doesn't imply evil intentions. To justify your punitive damages award per the malice, you should demonstrate that:
- The drunk motorist knew of the likely risky consequences of their conduct
- They deliberately and willfully failed to evade the consequences
Damage Caps in Personal Injury Cases
California has no caps on damages (both compensatory and punitive) in personal injury lawsuits. The judge or jury could award any reasonable and fair amount in the accident. However, the punitive damage award should be grossly arbitrary or excessive.
Common Defenses Against Your Personal Injury Claim
If a drunk driver caused your injuries, they should be lawfully accountable for all losses incurred as a result. However, the law permits defendants to avoid liability when specific defenses exist. The section below discusses defenses that drunk drivers and their insurance providers will use to reduce their accountability or prevent it.
You Were Aware of the Danger
Per the assumption of risk doctrine, you assume the possibility of injury from specific conduct by either:
- acting in a given manner, or
- due to your action's nature.
If this defense applies, you cannot receive compensation, even when the drunk driver is accountable for your injury.
You Were Also Responsible for Your Accident
In personal injury claims, plaintiffs seek money damages from defendants. If the drunk motorist is one hundred percent accountable for your accident, they should award you 100% of the damages. Nonetheless, what occurs if you were also partially liable for your injuries?
California uses a comparative negligence law that offers a method to share fault between all involved parties. The portion of your negligence that caused the accident reduces your damages. For instance, if the jury awards you one hundred thousand dollars and concludes that the driver was ninety percent liable and you, the plaintiff, ten percent accountable. Your damage award will be lowered by ten percent, leaving you with ninety thousand dollars.
Contractual Defenses
Defendants in personal injury lawsuits can also avoid their accountability by presenting proof that the victims contracted away their entitlement to take legal action against the defendants.
Regrettably, sometimes accident victims are not aware that they have signed away that right because the defendant might hide the release of liability in the contract's terms. To avoid this from happening, always consult with your personal injury lawyer before signing any paperwork.
Statute of Limitations
Statute of limitations is a common defense in personal injury lawsuits, making it a reason you should consult a skilled lawyer if another person's negligence injures you. The statute of limitation in California is two years from the date of the accident. If you fail to bring your claim within this time frame,
- the court will refuse to listen to your case at any time in the future, and
- you will lose the entitlement to compensation.
You Had a Pre-Existing Health Condition
The defendant might also try to reduce the dollar value of damages payable to you by claiming and verifying that your injuries weren't due to your accident.
To establish that your injury was pre-existing, the drunk driver will use testimonies from medical professionals and medical records. It is why insurance providers and defense lawyers request the victim's medical records for many years leading up to the collision. The driver's representatives will analyze the medical records, seeking proof that the victim previously sought medical attention for the injury.
Nevertheless, simply because you might have a pre-existing injury doesn't mean that the drunk motorist isn't obligated to compensate you for worsening or aggravating the injury. You can present medical proof that your injury from the crash has necessitated additional medical treatment that you wouldn't have needed.
Does the Drunk Driver Need to be Found Guilty of DUI?
It is not a must that the defendant is found guilty of drunk driving to recover damages. It is because California civil liability and criminal laws have different functions and burdens of proof.
Criminal driving under the influence laws are designed to punish intoxicated drivers and deter other people from acting in the same manner. Guilt is proved beyond any reasonable doubt, and all twelve jury members should agree.
However, civil liability exists to compensate alleged victims of wrongful conduct. A preponderance of the evidence should prove responsibility. The preponderance of the evidence means it is more likely than not that the motorist was drunk, and their conduct caused your injuries. Only nine jurors should agree.
Drunk Driving Conviction as Evidence of Negligence
A drunk driving conviction is enough to establish that the driver was negligent per se. Breaking a DUI statute constitutes per se negligence law. Therefore, even if the motorist avoids incarceration by pleading guilty to dry reckless, it'll still be negligence per se.
However, the driver is entitled to present proof demonstrating that their impairment didn't result in your injuries.
The Relationship Between DUI Drivers and Insurance
Most California insurance providers will compensate compensatory damages like medical bills when policyholders injure others while operating their vehicles while intoxicated. In other words, you can recover compensatory damages under:
- Your uninsured/underinsured motorist policy
- The defendant's third-party auto liability coverage
You might take legal action against the driver directly if:
- The collective policy limit of the applicable policies don't cover your damages
- There isn't insurance that covers your accident
The insurance company cannot pay you punitive damages under the public policy. Consequently, if awarded exemplary damages, you should collect the amount from the drunk driver. Sometimes, this can be impossible if the driver has little or no property to cover your entire award.
Find a Skilled Orange County Personal Injury Lawyer Near Me
There isn't an excuse for drunk driving since it could jeopardize lives. If you have suffered injuries, you should make the driver pay for the losses you have incurred. However, receiving compensation isn't easy. You have a lot going on without having to think of the legal claim on your own.
For many years Orange County Personal Injury Attorney has helped victims of drunk drinking and their families throughout Orange County. We will deploy an experienced team of investigators, doctors, and lawyers committed to the case when you hire us. Our legal counsel can fight to obtain the financial compensation you deserve and protect your constitutional rights. During your initial, no-obligation consultation, we can answer all your questions and assist you in making an informed decision about the available legal options. Don't hesitate to get in touch with us today at 714-876-1959 to schedule your initial consultation.