Injured By A DUI Driver Frequently-Asked Questions
I was hit and injured by a drunk driver, who was cited and arrested for DUI. Now what happens ?
Assuming since the police made an arrest, you should contact them to obtain a copy of the report to make sure that it is complete and that no facts were left out. Under California law, an accident must be reported to the DMV within 10 days when someone is killed, injured, or property damage exceeds $1,000. To report an accident to the DMV you, your insurance agent, or legal representative must complete the "Report of Traffic Accident Occurring in California" (Form SR-1). You also should report the accident to your insurance company as soon as possible so they can open up a claim on the matter. If injured, you should seek medical attention. A complete and thorough evaluation can lead to a speedier recovery. On the criminal side, the district attorney will investigate the matter and file criminal charges, if appropriate. This usually occurs very quickly, especially if the driver was over the "legal limit". If you were identified as a victim in the police report, you should be contacted by the prosecutor within a week or two of the accident. However, you should contact an injury attorney as soon as possible. We can help assist in the communication between you and the prosecutor's office to make sure they have all the necessary information to fully prosecute the DUI case and that your case receives the attention it deserves. You're also entitled to criminal restitution for certain damages (not including "pain and suffering" ) which need to be brought to the prosecutor's attention.
How deadly are drunk driver accidents?
In 2006, there were 13,470 fatalities in crashes in the U.S. involving an alcohol-impaired driver (BAC of .08 or higher) – 32 percent of total traffic fatalities for the year.
How impaired must a driver be under the law to be found guilty of a DUI ?
The legal limit in California is set by statute as follows:
- Under age 21 with a BAC of 0.01% or higher
- Over age 21 with a BAC of 0.08% or higher
- Operating a commercial vehicle with a BAC of 0.04% or higher
A driver who has a breath or blood test, at or above this percentage, is "presumed" to be impaired. Other factors such as performance on "field sobriety tests", witness statements, and driving performance are also very important factors. It is important to remember that even if a driver is below these percentages, they still may be driving while impaired and under the influence and can be convicted of criminal DUI. Likewise, drivers can be found under the influence of controlled substances depending upon the results of the blood test. Usually, a toxicologist is required to interpret the level of impairment in driving under the influence of drugs. Since a criminal standard is higher than a civil standard, a driver convicted of criminal DUI almost guarantees that they are "negligent" and will be found liable for any civil damages.
Who pays for my medical bills and damage to my car ?
To start with, the insurance company for the drunk driver may pay for the medical bills and any property damage. However, if you have personal injury protection (PIP) on your auto insurance policy, you may find it easier and faster to submit the claim to your own insurance company. Likewise, if you also have additional coverage called "med pay", medical costs up to a certain point can be submitted to your own carrier. Lastly, your own health insurance will pay for your treatment and resulting medical bills. In the meantime, you can settle your property claim with the insurance company before you settle any claim for personal injury which usually takes more time.
If an insurance company for a drunk driver wants me to sign some papers so I can get medical care, should I sign the papers?
Absolutely not. You should never sign anything or agreed to be interviewed before you have spoken to an attorney about the accident and your injuries. We offer no-obligation consultations, and are more than willing to explain your legal rights and options in detail, before you sign any legal documents.
What should I do if I am contacted by an insurance company for a drunk driver?
It is common that the Insurance company for the drunk driver will call you very quickly. Usually, they ask your permission if they can tape record the conversation before they start asking you one-sided questions. Oftentimes their goal is to settle the case as quickly as possible (before you talk to an attorney) for less than the case is worth. As an example, I will always remember receiving a call from a parent who had settled an injury claim for their minor daughter before speaking to an attorney. Tragically, the minor had a serious brain injury and still needed treatment, but the parent had settled the case. Remember, the insurance company represents the interests of their insured and not you! You should never give a statement to an insurance company for a drunk driver or give them access to your medical records before speaking to an attorney.
What if the drunk driver does not have insurance or leaves the accident scene?
You may file a claim under your auto insurance, which is known as an underinsured or uninsured claim (UM/UIM). This type of insurance should pay your medical bills and lost wages. In California, the minimum requirements for liability insurance are $15,00,0 and many accidents involve drivers with no insurance. For that reason alone, it is important to review your insurance policy to make sure you have sufficient UM/UIM coverage in case you are seriously injured in an accident with a drunk driver. If you are involved in an injury accident involving a hit and run driver, it is critical that you contact an injury lawyer immediately. The law imposes very strict requirements that must be complied with in these situations to avoid fraudulent claims. (see California Insurance Code section 11580.2 which generally requires that the accident be reported to the police within 24 hours, that there is physical "contact" with the hit-and-run vehicle, and that the accident be reported to the insurance company within 30 days). We encourage individuals to contact us regarding these situations, even after the 30 day deadline, so that arguments may be made in order to achieve entitled insurance coverage.
I have heard that bars or social hosts be held responsible for over serving the drunk driver ?
In a drunk driving accident, who should be held financially responsible? The most obvious place to look is at the driver and his insurance company. The drunk driver is the one that made a decision to drive while intoxicated, putting other drivers at risk. But the law also sometimes recognizes the role of liquor-serving establishments - bars, clubs, liquor stores, convenience stores, restaurants, etc. - in alcohol-related crashes and even "social hosts" who over serve their guests. This type of liability, called "dram shop liability," comes into play when a social host, bar, or restaurant patron is served too much alcohol and ends up causing an accident. However, by statute California severely restricts when a third party can be held civilly liable for the actions of a drunk driver. Generally, with a few exceptions, a person or bar in California cannot be held liable for the actions of someone to whom they served alcohol, unless that person is a minor. However, depending upon the specific facts of your case the statutory "dram shop" limitation may not apply. For this reason we invite you to contact us to discuss the situation more detail.
What should I do if a family member or loved one was killed by the DUI driver ?
If you are reading this article, Phillips Law Offices wants to offer their condolences on your loss. The healing process starts by looking for answers to why your family member was killed. Tragically, often times the answer may be because another person didn't fully consider the effects of their drinking and driving until it was too late.
No amount of money awarded in a wrongful death law suit will begin to compensate you for you loss or bring your loved one back, but it can help pay the family for medical and funeral expenses and positive things, such as college tuition for the children. It also serves as punishment for the drunk driver, to hold them fully accountable for their actions. Although punishment is the primary purpose of the criminal justice system, it does little to help the victim's family recover from the economic loss. When the family member killed is the primary income earner for a household, the wrongful death payment may turn out more essential than any kind of criminal conviction. Additionally, "punitive damages" may be sought as another form of punishment against the drunk driver.
While no amount of financial payment can ever compensate for the loss of a loved one, being financially secure in the family's future and the comfort of responsible parties being brought to justice can provide a sense of closure and security to survivors.
Do criminal actions against a drunk driver have to be completed before civil actions against the driver can be filed ?
No. However, criminal prosecutions generally move faster and are resolved before a claim for personal injury. It is always important to finish medical treatment before making a claim for personal injury. Otherwise, you do not know the full extent of your injuries. Also, it can help establish liability in the civil case if the driver has already been convicted of driving under the influence or DUI.
How long do I have to bring a civil claim for damages against a person who was driving under the influence ?
In California, the "statute of limitations" or time frame to bring a claim for personal injuries is two years from the date of the accident and this will cover most situations. However, a skilled injury lawyer will always look for other responsible individuals, entities or factors which could change the time period. For example, there may be multiple factors in causing an accident. A drunk driving accident that occurs in a construction zone might involve not only the drunk driver, but also the "layout" of the construction zone itself, thus involving a claim against a government agency. Claims against government entities must be brought within six months.
You can bring a claim for personal injury for the following:
- Past medical bills and estimated future medical costs
- Past lost income and estimated future lost earnings
- Pain and suffering from your injuries
- Emotional trauma from your injuries and/or the accident
- Permanent disability
- Loss of enjoyment of your life commonly called "pain and suffering"
- Punitive damages, as are commonly awarded in serious drunk driving cases
I was involved in a car accident where the other driver was arrested for being under the influence of drugs. Do these same rules apply to my situation ?
It is against the law to drive under the influence of alcohol or any controlled substance. In cases involving alcohol, the law sets a limit of .08% where it is "presumed" that the driver is under the influence. Although, in drug cases there is no "presumed legal limit", the blood test will reveal the quantity of the drug in the driver's system. It is still against the law to drive under the influence of a controlled substance, whether prescribed by a physician or not, and the same rules of liability will apply.
I was a passenger in a car driven by a DUI driver, and I was injured when he crashed. Can I sue him ?
Assuming your driver caused the accident, the general answer is that your driver is responsible for injuries caused by his negligence, even those of his passengers. Insurance coverage issues can be complicated. It is usually a good idea to discuss with a personal injury attorney insurance coverage issues and any limitations. Sometimes it might not be obvious which insurance policy is the correct one. For example, if the negligent driver at the time of the accident, was in the "course of scope" of his employment, his employer's insurance would be responsible as well. Or, if the negligent driver was operating a car which is owned by someone else, and they gave permission to drive the car, that individual might be responsible as well.
What if the person who injured me was found guilty of driving under the influence, but I feel like I also was probably also at fault. Can I still bring a civil lawsuit ?
Generally, yes but California follows what is called "comparative fault". Comparative fault is a rule to divide responsibility and damages between the injured person and the driver causing the accident. If the injured person is partially at fault for causing the accident, the recovery for damages is reduced by the percentage of his or her own fault. So, for example, if the injured driver is found to be 25% at fault, then the ultimate award of the monetary damages would be reduced by that same percentage. A judge or jury determines the percentage of fault attributable to each party. This rule may also be used by a defendant driver to reduce his percentage of responsibility in cases where there are multiple defendants. For example, in a multi defendant vehicle crash, if a particular defendant was only 10% responsible for causing the accident, they will be responsible for only 10% of the damages received by the plaintiff.
Will my case against a defendant who was driving under the influence settle out of court ?
While every case is unique, it is generally safe to assume that insurance companies will make every effort to settle a case before trial where their insured was driving under the influence. If for no other reason, it is understandable that juries are not sympathetic to drunk drivers and may award in addition to normal damages, an additional amount of money called "punitive" damages. Punitive damages as the name implies, is an award of monetary damages intended to punish the wrong doer for his conduct. Insurance companies do not want to take this risk and so most cases settle without the need to proceed to trial.
How much does it cost to hire an attorney to help me with my injury claim ?
The Rules of Professional Conduct require that an attorney's fee be "reasonable" and, in most cases, a written contract is required. As a result, attorney's fees and approaches vary almost as much as the number of lawyers. In some situations, it makes sense to hire a lawyer on an hourly basis (and hourly rates vary). However, this requires paying attorney's fees upfront as the case progresses. In personal injury cases, lawyers almost always work on these cases on what is called a "contingency fee." This means that unless the lawyer is successful and obtains a recovery, the client does not have to pay for the lawyer's services. Because of the risk involved, the percentage that injury lawyers charge on contingency cases can vary - generally between 25% to 40%, depending upon when the case settles. However, the benefit of hiring a lawyer on a "contingency", is that there is no up-front charge to the client. Many clients who otherwise could not afford to hire an attorney (unlike an insurance corporation!) can obtain legal representation. Sometimes, because of the uncertainty involved, lawyers are careful in accepting cases on a contingency. But a skillful lawyer should discuss with you in advance pros and cons and risks involved any particular case.
Do I have to pay for the initial consultation?
Absolutely not. We do not charge for the initial consultation and there is no obligation to retain the firm. We will gladly meet with you in person at our office or, if you prefer, at your location if more convenient. We also can answer initial questions by telephone or through video conference such as Skype or FaceTime. We also are available to schedule appointments in the evenings and on weekends.
How do consultations work at the Phillips Law Office?
At the Phillips Law Offices we like to say, "Big city experience, small town service" by striving to provide personalized client service. We can schedule appointments on evenings and weekends; can meet in person in our office; or if you prefer, we will travel to your location. We also can schedule "video meetings" through Skype and FaceTime if that is more convenient. During the first meeting, we can answer any questions you may have and fully explain your legal rights and options. We also discuss how to move forward and what the next steps should be toward a successful outcome. Our goal is to make our clients feel comfortable and supported by using a collaborative, client-focused approach.
What is the value of my case if I was injured by a drunk driver ?
That is a very fair question. To start with, the value is really driven by the seriousness of the injuries. The significance that the driver was driving under the influence or was criminally convicted of a DUI, is that insurance companies are less likely to "low ball" the true value of the case. They are also much less likely to play the typical games of either denying coverage or delaying coverage before settlement. The reason that drunk driver accident cases are likely to bring the injured party more money is because such cases may be subject to a claim of punitive damages. “Punitive damages” are an award of money intended to "punish" the bad driver and is in addition to the damages that would be normally awarded in a common negligence case. Thus, the potential for punitive damage can increase the settlement value in a case when handled by an experienced attorney.