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Hit by a Drunk Driver in California: What Now?

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Chuck Geerhart

According to recent statistics, drunk driving makes up over 33% of the state’s traffic fatalities.

California has over 1,000 drunk driving fatalities per year.

With numbers approaching epidemic levels, many Californian drivers may worry whether they will be next to have their lives permanently altered at the hands of a careless individual.

I Got Hit By a Drunk Driver; What Is the Legal Limit in California?

California law prohibits the operation of motor vehicles while an individual is under the influence of drugs or alcohol.

A person is guilty of DUI for either (1) impairment by drugs or alcohol while driving, or (2) a blood alcohol concentration (BAC) over the legal limit.

Under California Vehicle Code 23152, it is illegal to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.08% or higher.  Commercial vehicle operators may not operate a vehicle with a BAC of 0.04% or higher.

Drivers under 21 may not operate a vehicle with a BAC of 0.01% or higher. 

I Was Hit by a Drunk Driver; Can I Sue?

Many clients ask, “I was hit by a drunk driver with no insurance. What do I do?” If you don’t have uninsured motorist insurance and the at-fault driver doesn’t have insurance, you would typically file a personal injury lawsuit against the at-fault driver.

To recover for injuries sustained in a DUI accident, you must bring a civil negligence lawsuit against the at-fault party.

To establish a claim for negligence, a plaintiff must show that the defendant failed to use reasonable care while driving or was negligent per se. In California, a driver is negligent per se if they: 

  • Are under the influence at the time of the accident;
  • Have a BAC over the legal limit; or 
  • Refuse to take a BAC chemical test.

Another key element to holding a DUI driver liable for negligence is proving by a preponderance of the evidence that the defendant caused the injuries sustained in the accident. For example, it may be difficult to establish causation if the injured plaintiff was speeding through a yellow light at the time of impact.  

I Got Hit by a Drunk Driver; What Am I Entitled To?

California law permits the recovery of both compensatory and punitive damages for injuries sustained in a DUI accident. Compensatory damages include both economic and non-economic damages. The following categories are generally recoverable in California

Medical Expenses

In California, courts regularly order drivers who wrongfully injure another to pay the injured party’s medical bills. The responsible party or their insurance company may make the payment.

Automobile Repair Costs

California vehicle owners with damaged automobiles are entitled to be made whole. Typically, they may collect against the at-fault party, the at-fault party’s insurance company, or their own uninsured motorist policy.

In addition, the at-fault driver may be responsible for the cost of a rental car for the injured party.

Lost Wages & Earning Capacity

Lost wages and earning capacity include income the injured party would have earned or would be able to earn, but for the injury caused by the at-fault driver’s impaired driving.  

Pain and Suffering

These damages compensate an injured driver for the physical pain and mental anguish they suffer because of another’s negligent driving.

Pain and suffering damages are a type of compensatory damages unrelated to economic loss. While there is no official formula for a judge or jury to use in calculating pain and suffering awards, courts commonly use the “multiplier method” to estimate pain and suffering losses.

The more severe the injuries and the greater the suffering, the higher the award.

Punitive Damages

California courts award punitive—or exemplary—damages in addition to compensatory damages. Unlike other damages, punitive damages are not based on the injured party’s loss.

Instead, punitive damages are based on the egregiousness of the at-fault driver’s conduct. The purpose of punitive damages is to punish the drunk driver and deter other would-be DUI drivers.

California courts award punitive damages only in cases where the at-fault driver acted intentionally or recklessly.

I Got Hit by a Drunk Driver; What Is My Family Entitled To?

The family members of a DUI victim have standing to sue for their own loss of consortium. Loss of consortium lawsuits is appropriate where the injury of an individual deprives their spouse of companionship or intimacy.

This may be the case where a DUI accident renders the victim paralyzed from the waist down or in a coma.

It’s a tragic fact that not everyone survives a DUI accident. California law provides recourse for the family members as well as the estate of one killed by another’s impaired driving.

Survivor Action

While the right to sue generally terminates upon a plaintiff’s death, California law has carved out an exception with the Code of Civil Procedure 377.30.

The survival law permits the representative of one’s estate to sue for economic damages sustained between the time of the accident, and the time of death.

For example, a survivor action would be appropriate where a drunk driver crashes into someone’s car, knocking them into a coma, and the person dies of their injury six days later.

The deceased’s estate would be able to recover for property damage to the car, medical bills, and missed work hours up until the time of death.

Note that while California law prohibits courts from awarding pain and suffering damages in a survivor action, it does permit punitive damages.  

Wrongful Death

A wrongful death action compensates a spouse and certain other family members for the death of their loved one.

Damages include burial and funeral expenses, lost future income, and compensation for the deceased family’s loss of consortium, love, guidance, and companionship.

Unlike with a survivor action, punitive damages are typically not available in a California wrongful death claim. 

Hit By a Drunk Driver In California? Trust an Experienced San Francisco Personal Injury Attorney

Were you recently injured, or have you lost a loved one due to the drunk driving of another? Contact an experienced California personal injury attorney to discuss your options.

California law has very strict time limits in which you have to sue a drunk driver. Contact the Law Office of Chuck Geerhart for a free consultation.

Whether it be negotiating a desirable settlement or litigating your case at trial, we are here for you every step of the way.

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