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Answers to the Twelve Most Frequently Asked Questions in Drunk Driving/Driving Under the Influence and Wrongful Deat Cases1
1. Does the law differentiate between people who are killed or
seriously injured by drunk drivers as opposed to people who
are injured or killed by people driving under the influence
of street drugs or prescription drugs?
No. The law makes no distinction between driving under the
influence of alcohol, street drugs or prescription drugs. That
is why the term “DUI,” i.e., driving under the influence, is used
to describe the crime rather than “drunk driving.”
2. Who can sue in a DUI case?
Any person who is injured by the wrongful conduct of a
person driving under the influence or the survivors of someone
who was killed by a defendant who was driving under the influence
can bring a lawsuit against the defendant driver and any other
person or entity who was responsible for the accident.
3. Is it easier to prove a drunk driving case than a case in
which a person is driving under the influence of drugs?
Yes. The relationship between a high blood alcohol level
and driver impairment is well known and well established. The
same relationship between prescription and street drugs has been
far less studied and is not within the common knowledge of most
drivers and jurors. Thus, drunk driving cases are easier to
prove.
4. What if the person who injured me was found to be driving
under the influence, but I feel like I also was probably at
fault. Can I bring a lawsuit?
Yes. California is a comparative negligence State which
means that you can sue any responsible party even if you are
partially at fault in the accident. However, your damage reward
will be reduced by the percentage of your own negligence. For
instance if a drunk driver is found to be 90% responsible for the
accident, and you are found to be 10% responsible, then your
settlement or verdict will be reduced by 10%. Therefore, if you
were to win $1 million against the drunk driver, you would only
collect $900,000.
In cases against defendant who are found to have been
driving under the influence, jurors will go out of their way to
find fault against the defendant driver and to forgive anything
that you might have done wrong to contribute to the accident.
5. How impaired must a defendant be for there to be a
presumption under the law that the defendant was negligent?
A defendant will be presumed to be negligent for causing an
accident if you can establish that the driver’s physical or
mental abilities were so impaired by the drug or alcohol use that
they could not drive with the caution or ability of a person of
ordinary prudence and skill in similar circumstances.
Thus, a person can have a few drink or drive under the
influence of prescription drugs without being presumed to be
negligent.
6. Will expert testimony be necessary for me to establish that
the other driver was under the influence?
Probably. Usually at least a toxicologist will have to be
called at trial to establish the level of alcohol and/or drugs in
a person’s body. In addition, a human factors expert may be
necessary to testify to the relationship between the blood
alcohol or drug level and driver impairment.
7. What damages can I recover in a wrongful death or serious
personal injury case stemming from the negligence of a
defendant who was driving under the influence?
Under California law a seriously injured plaintiff is
entitled to recover all of his or her past and future medical
expenses; past and future loss of income/earning capacity; past
and future pain, suffering and emotional distress. Further,
plaintiff can recover punitive damages. In a wrongful death
case, plaintiffs are entitled to recover damages to compensate
for monetary losses as well as emotional distress damages for
loss of society, comfort and care.
8. What do I need to establish to prove punitive damages in a
case in which the defendant was driving under the influence?
First of all, punitive damages are not recoverable in
California in any wrongful death case. If your loved one has
died, you can only claim punitive damages if they survived for at
least a few moments after the impact that killed them.
In an injury or a “survivor” action against a person who was
driving under the influence to recover punitive damages, i.e.,
damages intended to punish the defendant, you must prove by clear
and convincing evidence that:
► that the defendant voluntarily drank or took drugs
to the point of intoxication/impairment before
they knew that they would be driving;
► they were aware of the probable dangerous
consequences of their conduct; and
► they willfully and deliberately failed to avoid
those consequences.
9. Special settlement considerations in drunk driving cases?
Whether or not an insurance company wants to admit it, the
jurors’ focus in a case in which the defendant was driving under
the influence will be on the reprehensibility of the defendant’s
conduct more than it will be on the extent of a plaintiff’s
damages.
Thus, a plaintiff should never settle a case against a
person who was driving under the influence for the same amount of
money that they would settle any other case. The case will
always be worth more money than a typical personal injury or
wrongful death case, and may be worth many more times the usual
value of the case, depending upon the seriousness of defendant’s
misconduct.
10. Will my case against a defendant who was driving under the
influence settle out of court?
Yes. There is probably a 98% chance of a settlement at some
point before trial. Insurance companies are scared to try cases
in which their insured has been driving under the influence
because of the potential for a very large verdict. Thus, even
abnormally high settlement demands by plaintiffs are usually met
if they are even somewhat reasonable and the plaintiff has a
significant injury or there has been a death.
11. Do I need an attorney to pursue my case against a defendant
who was driving under the influence?
Yes. You will need an attorney to help you establish the
degree of impairment of the defendant. Further, an attorney who
knows what they are doing will understand that you will receive
all of the benefit of the doubt that you will need in a case
against a person driving under the influence and will work up the
damage part of your case accordingly. This will help you achieve
a larger settlement or verdict than you would ever be able to
achieve on your own.
12. How long do I have to bring my case against a person who was
driving under the influence?
Drunk driving/dui cases must generally be brought within one
year of the date of the accident, unless the plaintiff is a
minor, in which case the plaintiff has until their 19th birthday
to bring a case.
If a public entity is in anyway involved in the accident, a
claim must be brought within six months, even if the plaintiff is
a minor (though public entities have to accept the claims of
minors up until one year from the date of the accrual of the
cause of action).
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