Punitive Damages may be available for victims who become injured or killed in Virginia as a result of an intoxicated driver's negligence. Such damages are codified in Virginia Code Section § 8.01-44.5 which is titled, "Exemplary damages for persons injured by intoxicated drivers." The full statutory language can be viewed at the link below this post.
The statute provides that in any action for personal injury that arises from the operation of a motor vehicle, the finder of fact may in its discretion award "exemplary" damages to the Plaintiff if the Plaintiff can prove that the Defendant acted either
- 1. With malice toward the Plaintiff
- 2. The defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others.
WANTON AND WILLFUL CONDUCT ESTABLISHED BY BLOOD ALCOHOL LEVEL OR REFUSAL TO TAKE THE TEST
The statute provides that the defendant's conduct shall be deemed wanton or willful, as a matter of law, if the evidence shows that
- 1. When the incident occurred, the defendant had a blood alcohol concentration of .15 percent or more.
- 2. At the time the defendant began drinking alcohol; he knew or should have known that his ability to operate a motor vehicle would be impaired.
- 3. That the defendant's intoxication was a proximate cause of the plaintiff's injury or death.
Each of these areas is a potential area of litigation for victims of drunk drivers in Virginia and should be discussed with your attorney if you are a victim of an intoxicated driver in Virginia.
WHERE DEFENDANT REFUSES TO SUBMIT TO BLOOD ALCOHOL LEVEL TEST
The statutory language also covers instances where a defendant refuses to submit to a blood alcohol test. In such cases, the law permits a presumption that the Defendant's conduct will be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others, when the evidence proves that:
- 1. Defendant was intoxicated at the time of the incident causing the injury or death
- 2. At the time defendant began drinking, he knew or should have known his ability to operate a motor vehicle would be impaired
- 3. Defendant's intoxication was a proximate cause of the plaintiff's injury or death.
In such cases, proving the defendant's intoxication will likely be based around more circumstantial evidence, (his actions, how he smelled, how he appeared at the scene, whether he admitted intoxication, etc.) rather than direct evidence of the same (blood alcohol levels.)
In either case, if you or someone you care about has been injured due to a drunk driver in Virginia, the law may provide exemplary damages for you. Discuss this statute with your lawyer and be sure to let your lawyer know the other driver may have been intoxicated as it may substantially affect the amount of money you may be entitled to recover under Virginia law.