Drunk Driver

California law allows you to sue another driver if you have been the victim of a drunk driving accident. This accident must have been caused by the defendant operating their vehicle while intoxicated or otherwise impaired, thereby guaranteeing you the right to sue for various damages. The defendant does not need to have been convicted of driving under the influence (a DUI) before a personal injury lawsuit can be filed. You need only to prove that said driver was guilty of negligence under state law.

However, before this personal injury lawsuit is filed, there are five basic steps you should follow if you have been hit by a drunk driver:

1. Contact the police - This is absolutely the first step that you should take following any kind of collision with an intoxicated driver. In contacting the police, you are ensuring that the entire accident will be thoroughly documented; this is absolutely critical in order to file an insurance claim and/or lawsuit against the guilty party. This is especially true if the intoxicated driver has fled the scene of the accident.

2. Cooperate with the police - The officers on the scene will know exactly what protocol to follow in order to best handle this stressful situation. Accidents can evoke a lot of emotions in people, particularly if you are the victim of an intoxicated driver. Let the police handle the overall situation as they have the specific training and experience to do so. When communicating with the officers on the scene, be sure to tell them all the relevant facts and to leave out all speculation. The officer will also determine the intoxication level of all the drivers involved in the accident.

3. Collect all relevant information - Always be sure to collect as much relevant information as possible from the scene of the accident. This includes all the personal information of the guilty driver, including their contact and insurance information, as well as the contact information of any potential witnesses. Use your cell phone to take photographs of any damage and/or injuries. If the intoxicated driver is acting in an aggressive manner towards you, allow the police to interact with them and then get the relevant information from the collision report.

4. Seek out medical treatment as soon as possible - It is absolutely vital that you seek out medical treatment. This is to ensure that you create a paper trail that will only strengthen your case in the weeks and months to come. Never refuse medical treatment, even if you do not feel any immediate negative effects from the accident. Some injuries may cause delayed pain or symptoms and can only be properly diagnosed by a clinician and their diagnosis may effectively keep your injury from turning into a chronic pain condition.

5. Retain the services of a personal injury attorney - This is the final crucial step; make sure you do so even before you contact your insurance company regarding your accident. Remember that every interaction you have with your insurance company will be recorded; it is best to have a personal injury attorney already on your case to give you the best chance of recovering a significant settlement. An attorney is the only entity that will be exclusively on your side during a situation like this.

Following these five steps will give you the highest likelihood of higher damages in the final settlement. Remember to stay calm, cool, and collected at every step of the way.

The type of information that you should get from the other driver includes:

1. Their full name

2. The number of their driver’s license

3. License plate number

4. Contact information for their insurance company (phone number and name)

5. The number of their insurance policy

6. Their Vehicle Identification Number (also known as the VIN)

The more information you can get, the easier it will be for your personal injury attorney to build you a strong case. If you have suffered from head trauma and are not fully cogent following the accident, then be sure to ask the presiding officer to get you that information and write it down for you.

Under California law, the other driver is legally required to share all of this information with you. There are a number of reasons why they may be trying to hide their information, including the fact they do not have insurance, are intoxicated, or are driving in a stolen car.

These are all criminal charges, as is fleeing the scene of an accident. If the other driver tries to flee the scene, then getting the make, model, and/or color of the other car may be enough for the police to track them down and, if necessary, determine their BAC levels. If the other driver is being uncooperative, take as many pictures as you can on your phone (including the license plate) to then help in the ensuing investigation.

The broad legal definition of intoxication is anytime a driver has imbibed so much alcohol and/or drugs that their ability to safely operate a motor vehicle has been completely impaired. The specific level of intoxication is determined by the driver’s blood alcohol concentration (otherwise known as their BAC). Under California Vehicle Code 23152 VC, there are specific BAC levels that drivers must adhere to as a legal requirement of being issued a California driver’s license:

1. Drivers of a non-commercial vehicle who is over 21 - 0.08%

2. Drivers who are under 21 for a “per se” DUI - 0.05%

3. Drivers who are under 21 for a “zero tolerance” DUI - 0.01%

4. Drivers of a commercial vehicle - 0.04%

5. Cab or rideshare drivers (Uber or Lyft) - 0.04% beginning July 01, 2018

Depending on the age and type of license that the intoxicated driver has, they are legally required to adhere to these BAC levels. At the scene of the accident, the attending officer will use a device known as a “breathalyzer” to determine the precise BAC level of the guilty party. The defendant may also be taken to a local hospital to have their blood drawn. Agreeing to both of these tests is required under California law, and is part of the contractual agreement that a licensed driver makes with the state as part of the issuance of their driver's license.

The core concept in a drunk driving accident is the question of the defendant’s negligence. California law states that there must be a clear line of causation that connects the negligence and actions of the driver to the accident and injuries that you have sustained. Therefore, there are four basic elements that your attorney must prove:

1. Breach of duty - All drivers, whether private or commercial, have a duty to follow traffic rules and operate their vehicles in a way that does not impede the safety of others. In the case of the defendant being intoxicated, your attorney will argue that their intoxication constitutes a breach of their duty, thereby making the defendant liable for your injuries and/or damages.

2. Cause in fact - This is the part of the case that focuses on what actually caused the injuries. Your attorney will have to prove that the defendant’s intoxication was the primary causative factor for the accident.

3. Proximate cause - This is a cause that sets into motion a series of events that results in a final effect (such as damages and/or injuries) that can be reasonably foreseen by any person.

4. Damages - Your legal team will have to prove that you suffered actual damages to your property and/or injuries to your body.

If you have been injured by a drunk driver, then the law considers this to be a breach of duty. Furthermore, your attorney will have to demonstrate the clear line of causation from the defendant’s impairment to your final injury. Under the legal concepts in this line of causation, the "cause in fact" would be their initial decision to imbibe alcohol excessively and the "proximate cause" would be their ensuing intoxication.

It is important to note that this concept of the line of causation is why a blackout is not usually a feasible defense for the defendant. For example, even if an intoxicated person may not be able to reasonably calculate risk at the time of the accident, the legal concept of "cause in fact" means they would still be held liable because they knew the risks when they started drinking.

As the plaintiff in a drunk driving personal injury case, you may be entitled to compensatory damages. These are damages for you to recoup the various financial losses that you incurred as a result of the accident, including both past and future losses.

These compensatory damages fall under two fundamental categories: economic and non-economic damages. Economic damages, which are also referred to as "pecuniary damages", consist of:

1. Medical treatment bills

2. Psychological or psychiatric treatment costs

3. Care that is either long- or short-term

4. Automotive repair costs

5. Loss of earning capacity

6. Lost wages

These economic damages can be objectively calculated, making the calculation of their respective amounts a fairly straightforward process. It is crucial that you always keep any and all documentation in relation to the various costs that you have incurred. This includes copies of all medical bills and receipts for automotive repairs.

The only type of economic damage that is not easily calculated is the loss of earning capacity. This is more theoretical in nature and usually requires hiring an economic expert who can determine what your future wages would have been if you had not been injured by the drunk driver.

Non-economic damages, on the other hand, consist of losses that you have suffered that are more subjective in nature. They are also known as “special damages” and include:

1. Pain and/or suffering

2. Loss of enjoyment of life

3. Emotional and/or psychological distress

4. Physical impairment and/or mutilation (including disfigurement)

5. Irrecoverable injury to a limb and/or body part

6. Overall inconvenience

7. Loss of enjoyment of life

Calculating these special damages is particularly complex, however, because they are based on metrics that are more subjective than economic damages. For the most part, your legal team will use legal precedent established by earlier cases and the respective amounts awarded in those cases. In other words, non-economic damages are frequently calculated based on the amounts established by similar lawsuits that have occurred in the past.

Sometimes it may be necessary for your legal team to hire an economic expert who can help calculate these more subjective financial amounts (much like the process of determining future wages). Furthermore, there is no maximum cap on the amount of damages your legal team may seek out.

In addition to compensatory damages, punitive damages can also be pursued in drunk driving personal injury cases. California law states that if the guilty party did something recklessly and/or intentionally with little to no regard for the consequences, then punitive damages may be rewarded as part of the civil lawsuit. They are referred to as “exemplary damages” and are primarily used as a punitive measures against the guilty party to dissuade them from acting in such a manner in the future.

Your personal injury lawyer must prove that the defendant was guilty of a legal concept known as "malice" in order for you to be eligible for punitive damages. Under the California Code of Civil Procedure 3294(c)(a), malice officially refers to intentional conduct that was meant to cause injury and/or harm to the victim or despicable conduct carried out against the victim with a conscious and/or willful disregard for their safety and/or rights.

Please note that the legal concept of malice can be met even if the defendant did not mean to harm you; your lawyer will need only to prove that they simply acted without any regard for your safety. In order for you to be eligible to receive punitive damages, your legal team will have to apply the “malice test” and establish that:

1. The defendant was fully aware of the potentially dangerous and/or fatal consequences of their actions.

2. The defendant deliberately and/or intentionally failed to conform to a standard of conduct that avoided these consequences.

Under legal precedent established by prior lawsuits, the Supreme Court of California indicates that this “malice test” is met if the defendant intentionally imbibed drugs and/or alcohol to the point of inebriation and that they then knowingly operated a motor vehicle.

Suing for these punitive damages requires a higher burden of proof for you and your legal team. This is also known as “clear and convincing evidence” and will be necessary if you wish to seek out these types of damages. Hiring a personal injury attorney immediately following the accident, and always gathering as much evidence as possible, will increase your likelihood of receiving the maximum amount of damages.

California is known as a “shared fault” state, meaning that multiple people may be found to be at fault for the same accident. This is also known as “comparative negligence” or “comparative fault” and is a standard of negligence that the civil courts can use to apportion precise fault amounts to all parties in an accident. The presence of comparative fault can make a simple personal injury case substantially more complex, thereby necessitating that you retain a personal injury lawyer with experience and working knowledge in these types of accidents.

Following a vehicular collision, the presiding insurance companies will use the police report and statements of anyone involved in the accident to determine who is at fault. This fault can be assigned incrementally to more than one driver. This is why it is so important for you to thoroughly document the accident, including any and all injuries and/or damages. This information will be used as an addendum to the police report and your statement so that the insurance adjusters can determine fault.

However, the presence of these comparative fault standards does not preclude the possibility of you seeking out personal injury damages. Some states require that the defendant bear at least half (50%) of the fault in order to hold them financially responsible for any resultant injuries. In California, however, the defendant may be only slightly at fault and you can still sue them for damages in civil court, particularly if they were intoxicated at the time of the accident. Your level of fault in the ensuing accident will determine the amount of damages that the civil court may award you.

There is substantial financial compensation that you may be entitled to as a result of your personal injury, including both compensatory and punitive damages. Call Los Angeles Personal Injury Lawyer today at 424-231-2013 and get your free consultation.