Proving Liability After Getting Hit by a Drunk Driver

How to gather evidence for a successful insurance claim after being hit by a drunk driver. Get the compensation you deserve for your injuries.

More than a million drivers are arrested annually for driving under the influence of drugs or alcohol, and that’s only a fraction of the 111 million episodes of drunk driving self-reported each year by American adults.¹

If you’ve been injured by a drunk driver, you have a right to expect compensation for your injuries, pain and suffering, and property damage.

But the at-fault driver’s insurance company won’t just hand you a fat settlement check. You’ll need to prove your claim.

Drunk driving cases progress the same as any other property damage or injury claim. The difference lies in the type of evidence you’ll need to establish liability.

How Drunk Driving Affects a Claim

Your claim to the other driver’s insurance company will be handled by a claims adjuster. As a general rule, adjusters are trained to settle your claim quickly for as little as possible.

So long as you gather the right evidence and show the adjuster you know what you’re doing, you can successfully settle your injury claim without an attorney.

The insurance company would rather pay you a fair settlement than end up in court. They know that a judge or jury will be very sympathetic to your injuries caused by a drunk driver. A verdict in your favor may be for a much larger amount than you’re currently demanding. This is powerful leverage you can apply during negotiations.

There are different levels of intoxication. Whether your state classifies the crime as Driving While Intoxicated or Impaired (DWI) or Driving Under the Influence (DUI), it all boils down to an accident caused by a driver who was drinking or using drugs.

Here’s the sticky legal part: Being drunk or high isn’t what makes the impaired driver responsible for your car crash. The accident was caused by the negligent actions of the driver, who was making mistakes because of the intoxication.

It helps to understand some common terms used by attorneys and insurance companies:

  • Negligence happens when a vehicle driver fails to act responsibly or does something no reasonable vehicle operator would do. For example, driving the wrong way on a one-way street.
  • Liability simply means responsibility. The at-fault driver or vehicle owner is usually liable for the accident victim’s damages.
  • Damages for car accident victims can include property damage, medical and therapy bills, out-of-pocket expenses, replacement services, consortium claims, lost wages, and pain and suffering.
  • Proximate Cause is an action that leads to an expected result, like an injury, which wouldn’t have otherwise happened.

Example: Negligence and Cause

Andy left a bar driving his sedan after having one too many beers. On the way home, he was too drunk to notice the light was red. As he drove through the intersection without stopping, he crashed into the side of Carol’s car, seriously injuring her.

In this example, Andy’s drunken state was technically not the cause of the collision. The cause was the negligent act of driving through the red light. Andy’s drinking caused him to operate his vehicle irresponsibly (by running the red light), which ultimately caused the accident.

Andy’s negligence was the proximate cause of Carol’s injuries, making Andy liable for her damages.

If you were the victim of a drunk driving crash, and the at-fault driver received a citation for an open container or was arrested for DUI or DWI, you’ll be in a strong position when negotiating your claim.

In drunk driving cases, the existence of an open container citation or a DUI should be all the evidence needed to convince the claims adjuster their insured was negligent.

Comparative Negligence and Liability

What if the drunk driver isn’t the only driver ticketed by police? Or a witness tells police they saw you doing something wrong?

Most states follow a comparative fault rule, meaning you can still pursue compensation from the other driver’s insurance company, even if you are partially to blame for the accident. Your total compensation will be adjusted to account for your share of liability.

Example: Comparative Negligence and Drunk Driving

Bob was running late to a meeting in San Diego. He was texting his boss that he was on the way, at the same time he abruptly changed lanes, trying to get ahead in traffic.

When Bob changed lanes, he cut off Jen, who had downed several glasses of wine during lunch. Jen couldn’t react fast enough and plowed into the rear of Bob’s car. Both drivers were injured in the collision.

Jen was arrested for DUI. Bob got a ticket for reckless driving.

Even though she was drunk driving, Jen’s insurance company wouldn’t accept full liability for the crash, so Bob hired an attorney and filed a lawsuit, seeking $100,000 for his injuries.

Jen’s lawyer subpoenaed Bob’s phone records, proving Bob was texting when the crash occurred, in addition to the reckless driving citation.

The jury decided Jen was 55% to blame for the accident. If Jen were sober, she could have reacted fast enough to avoid the accident. However, the jury also found Bob was 45% liable for the crash, because he was texting and driving aggressively.

Bob won his lawsuit, but his $100,000 demand was reduced to a $55,000 award after 45% was deducted for his share of liability.

State Liquor Laws Can Help Your Claim

Recovery from severe car accident injuries can be difficult and expensive. Your compensation may not be limited to the at-fault driver’s insurance coverage. Most states have Dram Shop laws that make bar and restaurant owners responsible for serving alcohol to patrons who drive drunk.

Some states extend that liability to individuals who provided alcohol in their home. Hit by a drunk driver who just left a Super Bowl party? You may be able to go after the party host.

Commercial establishments like bars and nightclubs often carry much more liability coverage than you can get from a drunk driver’s auto insurance. Individuals who serve alcohol often have homeowner’s insurance or umbrella policies with liability coverage. The same goes for adults who allow underage drinking in their home.

State liquor laws can be subject to interpretation. For example, lots of states make the bar liable for serving a person who is already intoxicated.

Proving that the server should have known the person was drunk won’t be easy. You’ll need expert help. An experienced personal injury attorney can tell you the value of your claim, and the strength of your Dram Shop case.

Watch the Driver at the Crash Scene

If you’ve just been in a car accident with a potentially intoxicated driver, first call 911 to report the crash and ask for help. Tell the dispatcher your location, if anyone is hurt, and that you think the other driver is drunk or high.

When law enforcement arrives at the scene:

  • Tell the police officers if you smell alcohol or marijuana on the other driver. In the time it takes police to arrive at the scene, the driver may use a breath spray or otherwise try to hide the odor. If you alert the police about the smell, they may administer a field sobriety test.
  • See if the driver uses eye drops. He may be under the influence of marijuana, medications, or other drugs that are difficult to detect. Telling the officer you saw the driver use eye drops might prompt them to administer a drug test.
  • Watch to see if anyone from the other car tries to dispose of beer cans, bottles of alcohol, or drug paraphernalia. If you saw the other driver toss any such items, point it out to the police officers.
  • Make sure you know which person was driving. Another tactic used by drunk drivers is to switch places with one of the passengers who hasn’t been drinking. Alert the officers if you saw that happen.

Each state has specific requirements for drivers involved in a crash. Take advantage of our Car Accident Guides to check the laws in your area.

Gathering Proof of Impaired Driving

Gathering proof of drunk driving shouldn’t be difficult. Start by requesting a copy of the police report for your accident. Police reports have a separate section for “contributory factors” where the investigating officer notes outside influences they believe contributed to the crash.

The officer will enter any of the at-fault driver’s actions that they determine caused the accident, such as running a red light, speeding, following too closely, or failing to yield.

The police report will list any tickets issued to the driver, and the reason a driver is arrested. The report will usually include the driver’s blood alcohol content (BAC) if the driver was tested on the scene or at the hospital.

A driver’s arrest for drunk driving is strong evidence of negligence, but a conviction is even stronger. Be sure to follow up on the driver’s arrest to confirm a conviction. You can contact the District Attorney’s Office and speak with the prosecutor assigned to the case.

You can never have too much evidence for proving intoxication and liability when you’ve been hit by a drunk driver.

Witness Statements: In addition to the police report and arrest records, look for witnesses who saw the other driver driving poorly before the crash, like swerving or running their car off the road.

Likewise, try to get witness statements from anyone at the scene who saw the other driver acting drunk, or heard the other driver admit to causing the collision.

Photos and Video: Gather as much photographic evidence as you safely can at the accident scene. Use your cell phone or any other device with a camera. You can’t take too many pictures of the cars, roadway, your injuries, and the police and paramedics at work.

Videos with sound can capture behavior by occupants of the other car and provide compelling evidence of intoxication.

When You’ll Need an Attorney

You can probably handle your injury claim on your own if you aren’t too badly injured and the at-fault driver carried enough insurance to cover your damages. Just remember that once you’ve accepted a settlement check and signed a release, there’s no going back.

Before your final settlement, if you have any questions about the value of your claim or the way the insurance company is treating you, you have every right to consult an attorney.

An experienced personal injury attorney will be able to secure evidence that would be hard for you to get on your own, such as alcohol or toxicology tests given to the at-fault driver at the hospital, the at-fault driver’s driving records, and other important information.

Your attorney can help you pursue compensation for severe injuries or fatalities from other sources besides the driver’s auto insurance. For example:

  • The drunk driver may have been covered under more than one insurance policy, like a parent’s policy or a company car policy
  • Money might be available from the estate if the at-fault driver was killed
  • Compensation may be pursued from the source of the alcohol provided to the drunk driver, like a bar or nightclub

Don’t settle for less. You have too much to lose by handling a complicated drunk driving case on your own. It costs nothing to find out what a good personal injury attorney can do for you.

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Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>