What to know first. When a drunk driver injures you in Virginia, punitive damages may be available in addition to payment for your actual losses.
Punitive damages for impaired drivers
Section 8.01-44.5 allows a judge or jury to award punitive damages in a personal injury or death case arising from the operation of a motor vehicle when the defendant acted with malice toward the injured person, or when the conduct was so willful or wanton as to show a conscious disregard for the rights of others.
The same section spells out one path that is treated as meeting that willful and wanton standard. The evidence has to prove three things together. First, at the time of the wreck the driver’s blood alcohol concentration was 0.15 percent or more by weight by volume, or 0.15 grams or more per 210 liters of breath. Second, the driver knew or should have known, when drinking or while driving, that the ability to operate the vehicle was or would be impaired. Third, the intoxication was a cause of the injury or death. A qualifying laboratory certificate can be used as proof of the test result, subject to the statute’s rules. A result at or above 0.15 does not automatically win punitive damages if the other two elements are missing, and a lower result does not automatically close the door if malice or other willful and wanton conduct can still be shown.
The cap
Section 8.01-38.1 limits punitive damages against all defendants combined to $350,000. That cap is on the punitive award, not on medical bills, lost income or other compensatory damages. If more than one defendant is in the case, the punitive figure is still shared under that combined limit.
Contributory negligence
Willful and wanton conduct can change the usual contributory negligence analysis, which can help people who would otherwise lose an ordinary negligence claim over a small share of fault. That does not mean every drunk-driving case is immune from a fault argument, and it does not mean you should make casual comments about what you did just before the crash. It does mean the defense’s favorite Virginia argument has less force when the other driver’s conduct meets this higher standard. For the basic fault rule, see contributory negligence.
Criminal case
The criminal case and the civil claim run separately. A conviction can support the civil case, and the blood test paperwork from the criminal file often matters in a section 8.01-44.5 claim. A dismissal or a plea to a lesser charge does not automatically end the civil claim, because the civil standard and the civil evidence rules are different. Do not wait on the criminal docket to start gathering civil proof. Witnesses, a receipt from the pub, camera footage and the names of people who saw the driver before the wreck can disappear while a criminal case is still pending. The two-year civil deadline in the filing deadline guide keeps running the whole time.
Claims against the business that served the driver
Virginia common law generally does not allow an injured person to sue the pub or restaurant that served the driver. The Supreme Court of Virginia, in Williamson v. The Old Brogue, Inc. and again in Robinson v. Matt Mary Moran, Inc. in 2000, has treated the patron’s drinking, not the vendor’s serving of alcohol, as the proximate cause of later injuries to someone else. The Court has applied that rule even when the patron was under 21. A claim against the drunk driver, and against that driver’s insurer and your own UM or UIM coverage, is the usual civil path.
What to gather besides the test result
A blood or breath result is only one piece. Try to preserve what shows the driver was impaired and that the impairment caused the wreck. That can include the time and place of the last drinks, the names of people who were with the driver, a video from a parking lot, and the officer’s observations written in the criminal paperwork. If a passenger was in the other car, that person may have seen weaving, speeding or a missed light. Write those details down while they are fresh.
Your own medical care still comes first. Punitive damages are in addition to compensatory damages. If you delay treatment, the compensatory part of the case, which is usually the larger part, is the piece that suffers. Keep every bill and every work note. If the crash was in Virginia Beach or Norfolk, the local court path is described in the courts guide linked at the end of this page.
Questions people ask
Can I sue the pub that served the driver? Virginia generally does not allow those third-party claims, for the reasons above.
Does insurance pay punitive damages? That depends on the policy. Some policies exclude punitive damages. Compensatory damages for medical care, lost work and similar losses are the part insurers more often address.
Is a 0.08 result enough for punitive damages under the special 0.15 rule? No. The special path in section 8.01-44.5 is built around a 0.15 result plus the knowledge and causation elements. A lower result may still support other theories, including ordinary negligence and, in some cases, willful and wanton conduct proved another way.
What should I do in the first days? Get medical care, report the crash, make notes of the other driver’s behavior while it is still fresh, and save the names of witnesses. See the first week after a crash.
Keep reading with wrongful death and local courts.