DUI Punitive Damages in Virginia
Personal Injury Law For Victims of Drunk Driving in Virginia
Cannot bankrupt DUI liability under Chapter 7
To obtain punitive damages, a jury must find either intentional conduct or willful and wanton negligence. Their primary purpose is to warn others and punish the wrongdoer ‘if he has acted wantonly, oppressively, or with such malice as to evince a spirit of malice or criminal indifference to civil obligations. Willful or wanton conduct imports knowledge and consciousness that injury will result from the act done. The definition of willful and wanton negligence is “action undertaken in conscious disregard of another’s rights or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Doe v. Isaacs, 265 Va. 531, 535, 579 S.E.2d 174, 176 (2003)
Code § 8.01-44.5 states in relevant part: In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others. A defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff. For the purposes of clause (i), it shall be rebuttably presumed that the blood alcohol concentration at the time of the incident causing injury or death was at least as high as the test result as shown in a certificate issued pursuant to § 18.2-268.9, in a certificate of analysis for a blood test administered pursuant to § 18.2-268.7, provided that the test was administered in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12, or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5, 18.2-268.6, and 18.2-268.7. In addition to any other forms of proof, a party may submit a copy of a certificate issued pursuant to § 18.2-268.9, a certificate of analysis for a blood test administered pursuant to § 18.2-268.7, or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, which shall be prima facie evidence of the facts contained therein and compliance with the applicable provisions of §§ 18.2-268.1 through 18.2-268.12. For the purposes of clause (ii), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol. However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, a defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (a) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (b) at the time the defendant began drinking alcohol, during the time he was drinking alcohol, or when he was operating a motor vehicle, he knew or should have known that his ability to operate a motor vehicle was impaired; and (c) the defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent. In addition to any other forms of proof, a party may submit a certified copy of a court’s determination of unreasonable refusal pursuant to § 18.2-268.3, which shall be prima facie evidence that the defendant unreasonably refused to submit to the test. For the purposes of clause (b), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol. Evidence of similar conduct by the same defendant subsequent to the date of the personal injury or death arising from the operation of a motor vehicle, engine, or train shall be admissible at trial for consideration by the jury or other finder of fact for the limited purpose of determining what amount of punitive damages may be appropriate to deter the defendant and others from similar future action.The court will instruct the jury in a proper case as follows:
A person is under the influence of intoxicants if it is apparent that he has consumed enough alcoholic beverages; drugs; alcoholic beverages and drugs in combination to affect his manner, disposition, speech, muscular movement, general appearance, or behavior.
If a person drives a motor vehicle while under the influence of intoxicants, then he is negligent.
If you find your verdict for the plaintiff and if you further find by the greater weight of the evidence that:
Blood/Breath test
- (1)when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume (0.15 grams or more per 210 liters of breath); and
- (2)at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and
- (3)the defendant’s intoxication was a proximate cause of the [injury; death] of the plaintiff;
Unreasonable refusal
- (1)when the incident causing injury or death occurred, the defendant was intoxicated and unreasonably refused to submit to a test of his blood alcohol content; and
- (2)at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle was impaired;
then you may award punitive damages. If you do so, you must state separately the amount allowed as punitive damages.
Cases Permitting Punitive Damages Against Drunk Drivers
Muri v. Killeen, VLW 004-3-1330(USDC-WD 2004)
Where defendant, after consuming alcohol at a company-sponsored dinner, turned the wrong way onto a divided highway and continued to drive on the wrong side of the road at 40-50 mph, despite being passed by a “fair number” of oncoming vehicles, and he failed five field sobriety tests and had a .075 percent blood alcohol level two hours after a traffic accident, the driver injured in the accident can sue the defendant for punitive damages.
Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180 (2003)
The Virginia Supreme Court held that a “jury could properly conclude that DeGarmo’s conduct amounted to more than simple negligence and reflected a conscious disregard for the safety of others,” where DeGarmo was intoxicated, knew Sowers was intoxicated, and yet encouraged Sowers to drive faster on roads he knew were difficult to navigate at night. The two men had consumed more than two fifths of whiskey together between 5 p.m. and 11 p.m., at which time they were involved in a vehicle accident. Sowers crossed into the oncoming lane of traffic and collided head on with another vehicle. DeGarmo and Sowers then moved to the back seat of the vehicle and told the police that the driver had exited the vehicle and fled. DeGarmo had a blood alcohol level of 0.179 and Sowers had a blood alcohol level of 0.264.
Woods v. Mendez, 265 Va. 68 (2003)
The Supreme Court also found that the trial court erred in striking the punitive damage claim where the defendant operated a motor vehicle after consuming at least 10 beers, continued to drink, knew he was in danger in falling asleep and, did in fact, fall asleep prior to impact.Webb v. Rivers, 256 Va. 460, 507 S.E.2d 360 (1998)
The Virginia Supreme Court held that a jury issue was presented on the punitive damages question where the defendant drove through a red light at ninety (90) miles per hour in a twenty-five (25) mile per hour speed zone of a residential neighborhood with a 0.21 percent blood alcohol level and was so drunk he did not know where he was or the time of night.
Booth v. Robertson, 236 Va. 269 (1988)
In the first case by the Virginia Supreme Court where punitive damages were explicitly recognized as a remedy against drunk drivers. The court found punitive damages should have been submitted to the jury on the facts of the case, where at about 7:50 p.m., the defendant, operating a jeep, drove the wrong way down the exit ramp for northbound traffic at Exit 39 and entered the northbound lanes of Interstate 81 into the path of an approaching tractor-trailer truck. Seeing the defendant’s jeep coming toward him, James Hogan, the driver of the truck, blinked his lights and blew “a constant blast” on his air horns. Hogan also turned his vehicle to the right and then to the left in an effort to avoid a collision with the jeep. The defendant finally passed Hogan on the latter’s left side and “just kept going . . . at a pretty high rate of speed.” At a point approximately four-tenths of a mile south of Exit 39, the defendant collided head-on with the plaintiff. The defendant was charged with driving under the influence and reckless driving. A certificate of blood analysis showed that after the accident, he had a blood alcohol content of 0.22% by weight by volume. The defendant later pleaded guilty to the charge of driving under the influence.
The court held that the subjective statements of the defendant denying any conscious disregard of the rights of others was not determinative but determined that the objective fact that the defendant voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provided sufficient proof of his conscious disregard of the rights of others. The court rejected defendants contention that because of his high state of intoxication, he was “less [able] to be aware of the consequences of what [he was] doing.” explaining that in Essex, a criminal case, the court held intoxication is “irrelevant to the determination of malice,” but that it is “relevant to a determination of the degree of the defendant’s negligence: whether ordinary, gross, or wanton.” Id., 322 S.E.2d at 221-22 and that intoxication may “serve to elevate the defendant’s conduct to the level of ‘negligence so gross, wanton, and culpable as to show a reckless disregard of human life.'” Id., 322 S.E.2d at 222 (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)).
Huffman v. Love, 245 Va. 311, 427 S.E.2d 357 (1993)
The Virginia Supreme Court held the evidence was sufficient on the issue of punitive damages, where an intoxicated defendant drove his vehicle into an oncoming lane of traffic and side swiped a vehicle operated by the plaintiff. The defendant had also caused a collision immediately prior to the accident in question when he rear-ended another vehicle. The defendant in Huffman was driving twenty-five (25) miles per hour in a fifteen (15) mile per hour zone, failed to stop at the scene and continued to drive for three (3) miles after the accident. When he was finally stopped he could not talk, walk, or stand without assistance. His blood alcohol level was recorded at 0.32 percent and the Court noted that he had been convicted twice for drunk driving prior to the accident at issue.
Cases were no punitive damages were awarded
Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003)
The Virginia Supreme Court ruled that punitive damages were unavailable where (1) there was no evidence that defendant exceeded the speed limit or a reasonable speed under the circumstances, (2) that he was driving on his proper side of the street and, (3) that he was apparently operating a properly functioning vehicle, concluding that the unknown motorist’s behavior was not the “egregious” conduct spoken of in the cases of the Virginia Supreme Court and required to sustain a claim of punitive damages. RULING: Considering defendant’s conduct in its entirety, we hold that, like in Baker, Hack, and Puent, defendant’s behavior was not so willful or wanton as to show a conscious disregard for the rights of others.
Webb v. Rivers, 256 Va. 460, 463, 507 S.E.2d 360, 362 (1998) FACTS: On May 3, 1995, the plaintiff was operating a Chevrolet Blazer, and his wife and young daughter were passengers. …The defendant ignored a red light, drove through the intersection, and his car collided with the plaintiff’s vehicle, which rolled over and “came to rest on its roof.” Jacqueline Webb, the plaintiff’s wife, testified that the defendant was driving his car at 90 m.p.h. The legal speed limit at the intersection where the accident occurred is 25 m.p.h. RPD Officer Walter P. Wilhelm, testified that when he arrived at the scene, the defendant was “entirely intoxicated sitting behind the wheel of a wrecked automobile.” The defendant, whose car was on Grove Avenue, told Officer Wilhelm that the defendant thought he was on the Boulevard, another street in Richmond. The defendant also stated that the time was 10:00 p.m. when it was actually 11:50 p.m. Officer Wilhelm testified that “it was hard to understand anything [the defendant] said” and that the defendant admitted that he had been drinking alcoholic beverages that night. Officer Wilhelm described the defendant as “very” drunk and that he had a very strong odor of alcohol about his person. Officer Wilhelm testified that the defendant was in a stupor because he was so drunk. Two hours after the accident, a breath test indicated that the defendant had a blood alcohol level of .21%. The blood alcohol level to establish a rebuttable presumption of intoxication in Virginia at that time was .08%. The defendant pled guilty to the charge of driving under the influence. RULING: Here, the plaintiff failed to produce any evidence that at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, the defendant knew he was going to operate a motor vehicle. The record is simply devoid of such evidence. Therefore, we hold that the trial court correctly struck the plaintiff’s statutory claim for punitive damages.
Puent v. Dickens, 245 Va. 217, 427 S.E.2d 340 (1993)
The Virginia Supreme Court held that the evidence was insufficient to permit an award of punitive damages where an intoxicated defendant rear-ended a stopped vehicle. Noting that the accident happened at night, the Court held that a jury could have found that the defendant was traveling very fast just prior to the collision, that there was no indication that he applied his brakes before impact, and that he attempted to leave the scene of the collision. Nevertheless, the Court concluded that these “combined factors are insufficient to justify a finding of the wanton negligence necessary for an award of punitive damages.”
Hack v. Nester, 241 Va. 499, 404 S.E.2d 42 (1991)
The Virginia Supreme Court held that the evidence failed to establish the conscious disregard for the plaintiff’s safety necessary to sustain an award of punitive damages, where the defendant had consumed most of a pitcher of beer shortly before the accident and had two prior drunk driving convictions. The defendant operated his vehicle at night without a left headlight and while he was suffering from night blindness and his vehicle collided head-on with plaintiff’s vehicle on a curve while on the plaintiff’s side of the highway.
Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960) (NOTE: HEAVILY CITED CASE IN VIRGINIA) The Virginia Supreme Court concluded that the issue of punitive damages should not have been submitted to a jury where an intoxicated defendant caused a rear-end collision on a city street, stating that exemplary damages are allowable only where there is misconduct or malice, or such recklessness or negligence as evinces a conscious disregard of the rights of others. However, where the act or admission complained of is free from fraud, malice, oppression, or other special motives of aggravation, damages by way of punishment can not be awarded and compensatory damages only are permissible.
Vest v. Paxton, 1996 U.S. Dist. LEXIS 8199, 1-2 (W.D. Va. 1996).
Paxton, who had a history of drinking, had consumed approximately 12 ounces of bourbon, enough to feel “buzzed,” and then drove on I-64. He states that as he sought to pass a tractor trailer, he moved into the left lane and lost control. Other witnesses say he was traveling consistently in the left lane at a high rate of speed and then lost control. Leaving skid marks across the road and median, he spun across the median and struck the vehicle driven by Vest, with her children as passengers. Paxton claims that he attempted to render assistance to Vest and then climbed a fence seeking aid from nearby houses. Other witnesses dispute that he ever attempted to render assistance and was climbing the fence in an effort to leave the scene. Paxton’s Blood Alcohol Content (“BAC”) was in the range of 0.20% to 0.23%. Prior to this accident Paxton had been arrested for Driving Under the Influence (“DUI”), he plead guilty to that DUI subsequent to the instant accident. His drinking on the evening of the collision with Vest was greater than that associated with the prior DUI.
The court stated that in tort cases arising from an intoxicated driver, punitive damages are appropriate where significant aggravating facts of prior acts establish that the defendant had knowledge that his acts would result in injury. Evidence of intoxication alone is insufficient to support punitive damages.
The court distinguished Puent, finding Paxton left skid marks preceding the collision which “could indicate that Paxton attempted to bring his vehicle under control by applying brakes.” The court also noted that unlike Booth, “there were no other drivers actively signaling to Paxton that his conduct was incorrect or dangerous.”
Injured by Drunk Driver
— It’s time to fight back! —
Representing Victims of Drunk Driving
Thomas H. Roberts, Esq.
(804) 783-2000
Chesterfield Jury
Awards $800,000.00
To Woman Injured
By Drunk Driver
A Chesterfield Jury awarded plaintiff $800,000.00 against defendant. Plaintiff’s attorney, Thomas H. Roberts from the law firm of Thomas H. Roberts and Associates, P.C., was successful in obtaining a ruling from the court that under bankruptcy law, debts and liabilities caused by the unlawful operation of a motor vehicle while under the influence of alcohol and drugs was a non-dischargeable debt.
Plaintiff stated, “I was told by one of those firms that advertise on T.V., since [defendant] filed bankruptcy, I didn’t have a case. Mr. Roberts is a real fighter, never gave up and got me results that others couldn’t.”
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Not every lawyer or law firm has what it takes to obtain a verdict in excess of $1 Million ($1,000,000.00). Don’t you want a lawyer who has been there and done that to handle your case when you have a serious injury?
One of the Largest Jury Verdicts in Virginia 2002 – reported Lawyer’s Weekly
In 2002, the largest jury verdict in the history of Henrico County
City of Richmond, Henrico County, Chesterfield County
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The facts and circumstances of each case are unique and therefore the fact that a law firm has obtained significant verdicts and results in other cases in no way guarantees that other cases will have similar results.
