Drunk Driving Accidents, Frequently Asked Questions (FAQ)

  • 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, or driving under the influence, is used to describe the crime rather than drunk driving.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.

Are there 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. Learn more about DUI cases Winer, Mckenna & Burritt have won.
  • 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.
  • 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.
  • 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 two years 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).

Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.