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Victims of Drunk Drivers

The Cost of a DUI Accident

On average someone is killed by a drunk driver every 45 minutes. In 2008, an estimated 11,773 people died in drunk driving related crashes-a decline of 9.8 percent from the 13,041 drunk driving related fatalities of 2007.[i] Despite that decline, the cost to the public, not to mention the victims, of drunk driving is staggering. According to a 2002 study, alcohol-related crashes in the United States cost the public an estimated $114.3 billion in 2000, including $51.1 billion in monetary costs and an estimated $63.2 billion in quality of life losses. People other than the drinking driver paid $71.6 billion of the alcohol-related crash bill, which is 63 percent of the total cost of these crashes.[ii]

Give some thought to the implications of the last statistic. 63 percent of the total cost of drunk driving crashes is borne by parties other than the drunk driver. Why does that occur? Drunk driving is not restricted to any particular economic demographic, but all too often drunk drivers do not have substantial assets and/or ample automotive insurance to cover the damages suffered by the injured victim. What follows is a discussion by the authors of the various safeguards a consumer should ensure to protect themselves and loved ones from the potential losses suffered by victims of DUI accidents as well as the remedies to compensate victims for their damages.

Protections Against Injuries Sustained From a DUI Accident

The Insurance Research Council has estimated that one in six drivers operate their vehicles without insurance or roughly 16.66%. That same Council predicts that for every one percent increase in unemployment, the number of uninsured drivers grows by 3/4 of a percent. Therefore, if national unemployment has gone from 5% to 10%, the percentage of uninsured drivers could leap to 20.41%, nearly one in five drivers.

With this looming statistic in mind, one should ensure their automobile insurance policy includes Uninsured/Underinsured motorist coverage (UM/UIM). This coverage is used in two situations. First, it is used if the DUI driver does not have any insurance. In this situation your UM policy becomes, in a way, the DUI driver's insurance and personal injury attorneys, such as the authors, will prove your claim and negotiate a settlement using this policy.

Second, this coverage protects against the drunk drivers whose insurance limits are minimal. For example, in Washington State, the minimal insurance one must carry is $25,000.00 per person, per accident. This is often not sufficient to cover the damages of a victim of a drunk driver. Therefore, after proving a claim and obtaining policy limits from the drunk driver's minimum limits insurance, personal injury attorneys may request additional just compensation from the injured victim's Underinsured Motorist Coverage. Do not skimp on this coverage.

Ensuring that you have Personal Injury Protection (PIP) is another protection. A mistaken belief amongst individuals is that if they are in an accident, the drunk driver's insurance will pay their medical bills. While this may be true, an insurance policy of an at-fault driver, including a drunk driver, will not usually pay the medical bills piecemeal. It will not be until the victim has completed treatment and ready to make a claim for settlement that the insurance company will engage in negotiations. Therefore, taking out a PIP policy will aid in paying for the medical bills of injuries sustained in a motor vehicle accident. The policy acts as a loan and may require reimbursement for any medical bills paid once a settlement is reached with the drunk driver's insurance company. Take our the maximum PIP or MedPay amount allowed by your state.

Finally, you should talk with your insurance agent about umbrella policies. Umbrella insurance is extra insurance that you purchase in addition to your regular insurance policies. As its name implies, umbrella insurance is "on top of" your other insurance policies like an umbrella. Its purpose is to provide added financial protection in the event that other policies cannot cover the loss.

Remedies to Compensate Victims of Drunk Drivers

"Dram Shop Cases"- Over Service

In order to deter drunk drivers, and the persons that enable said behavior, the majority of states have enacted some type or "dram shop" legislation. This type of legislation imposes liability upon commercial vendors, social hosts who supply alcohol to minors, and to the drunk drivers themselves. However, even states that have never adopted "dram shop" acts or have repealed them generally have some legislation affecting the liability of commercial vendors who over-serve alcohol.

In the case of the author's home state of Washington, it falls into this latter category. Washington repealed its dram shop act, but replaced it with a statutory scheme creating fault on behalf of a commercial vendor that fails to exercise reasonable care and over-serves a person (or serves a minor) who subsequently injures an innocent victim. The Revised Code of Washington (RCW) 66.44.200 disallows the serving of alcohol to any person "apparently under the influence of liquor." RCW 66.44.320 disallows the service of any alcohol to a minor.

The commercial host is civilly liable for the consequences of over-serving a patron. Before a commercial vendor can become licensed to sell liquor they must undergo a class where they learn, among other things, to prevent over-service, recognize proper identification, properly check identification, and deal with apparently intoxicated individuals. Recently, the minimum standard was statutorily altered from the older standard of "obviously intoxicated" to "apparently intoxicated".[iii] It is important to understand the implications of the distinction between "obviously intoxicated" and "apparently" to be "under the influence". The change in standards lowered the minimum threshold of the observation of the influence of alcohol. "Actual intoxication" like "obviously intoxicated" is not the standard for bartenders and wait staff. The standard is whether the wait staff or bartenders would have observed the appearance of alcohol's influence if they bothered to pay attention to their patrons. The term of art is whether the drunk driver was "over-served".

The "Catch-22" in this scenario is proving the alcoholic behavior and appearance of the drunk driver. Washington courts have consistently decided that "apparent intoxication" must be determined by direct observational evidence at the time of service.[iv] Direct, observational evidence at the time of service would exclude circumstantial evidence such as observations of police officers at the scene, blood alcohol tests, or at the scene witness observations. We can assure you from experience that the wait staff (absent a whistle blower) will assiduously deny over-service occurred. Friends or acquaintances of the drunk driver will be loath to implicate their friend or drinking buddy. So how to prove your dram shop case in the State of Washington or states with similar legislation?

The same Faust court (see citation below) which re-affirmed the standard of "direct, observational evidence" also provided a valuable exception. The court decided that juries may consider and weigh "circumstantial evidence" when the circumstantial witness's observation occurred within a short period of time after the alleged over-service. In addition, the Faust court decided that BAC evidence, while not sufficient standing alone, could corroborate circumstantial observations. The key in understanding the impact of Faust on "over-service" cases is the ability of victimized plaintiffs to survive a motion to dismiss and take the case to the jury.

"Dram Shop Cases"- A Minor Drunk Driver

The Washington legislature has also prohibited the sale of alcohol to minors. Commercial vendors must take reasonable steps to avoid serving minors, which includes checking identification and, if still in doubt, either not serving or requiring a signed certification card[v]. If vendors fail to take these reasonable steps they will likely be financially responsible for harm done to third parties by an intoxicated minor and even injury to the minor themselves.

The liability of commercial vendors that furnish alcohol to minors, who subsequently injure an innocent victim, or themselves, is even broader than the "over-service" liability. Washington courts have found the following persons have a cause of action against the commercial vendor for the injuries suffered by an intoxicated minor improperly served: (1) an injured intoxicated minor-purchaser[vi]; (2) third persons injured by the intoxicated minor purchaser[vii], (3) other injured intoxicated minors with whom it was foreseeable the minor purchaser would share the alcohol[viii]; and (4) third persons injured by an intoxicated minor with whom the minor purchaser foreseeably shared the alcohol.[ix]

Dram shop cases can be very complicated. It is best to consult an attorney if you are a victim of a drunk driver and have been injured to determine whether you have a legitimate claim against a commercial vendor.

Other Remedies

Criminal courts can require restitution be paid as part of the drunk driver's sentence. Only 17 percent of impaired drivers who injure others in crashes, however, are charged and convicted. 11 percent are charged and not convicted and 72 percent are never charged.[x] Without conviction, there is no court order requiring restitution to the victims. Restitution is no panacea, however, because the drunk driver may not be able to pay. Additional sanctions against the drunk driver for non-payment do nothing to improve the plight of the victim.

One remedy for victims of drunk drivers is the various crime victim compensation programs available in all 50 states. Access to your state's program can be found on various Internet websites. The National Association of Crime Victim Compensation Board would be our suggested starting point. Unfortunately, most programs are under-utilized with only 4 percent of crime victims making an application. The programs are not engaging in sufficient outreach with 90% of victims being unaware of the program's existence at the time of the crime. State programs will often exclude certain classes of victims, particularly of non-violent crime. Funding tends to be unstable and insufficient which may tend to explain our prior observations [xi]

Mother's Against Drunk Driving (MADD) also provide victim services for those individuals and families injured by a drunk driver.

Conclusion

Victims of a drunk driver should act quickly to retain experienced legal counsel and begin to gather the necessary evidence to prove their claims before memories fade, or alliances of potential defendants can be formed. Try to persuade the drunk driver and any of his witness friends that his or her best interests are served by being honest about their level of intoxication and behavior. Why? Damages arising from an incident of drunk driving are non-dischargeable in bankruptcy. The drunk driver will potentially dodge a huge mountain of non-dischargeable debt (all of the damages of the injured victim) if the commercial vendor is properly found liable for over-service. When attempting to persuade the drunk driver to cooperate, great care should be taken to avoid either soliciting perjured testimony or being construed as using extortionist tactics. Obtaining a credible forensic witness/toxicologist to discuss normal behaviors at certain levels of intoxication is also a necessity.

Going after the commercial vendors that allowed a patron to become intoxicated and impaired on their premises not only promotes justice and better behavior, but provides additional potential resources for the victims or their families.


[i] National Highway Traffic Safety Administration. "Traffic Safety Facts 2007 Data: Alcohol Impaired Driving" DOT 810 985. Washington DC: National Highway Traffic Safety Administration, 2008.

[ii] Taylor, Dexter; Miller, Ted; and Cox, Kenya. "Impaired Driving in the United States Cost Fact Sheets." Washington, DC: National Highway Traffic Safety Administration, 2002.

[iii] Barrett v. Lucky Seven Saloon, Inc., 152 Wash.2d 259, 273-74, 96 P.3d 386 (2004).

[iv] Faust vs. Albertson, 166 Wash.2d 653, 211 P.3d 400 (2009)

[v] See RCW 66.20.210, Schooley v. Pinch's Deli Market, Inc., 134 Wn. 2d 468, 481, 951 P.2d 749 (1998)

[vi] See Young v. Caravan Corp., 99 Wn.2d 655, 660, 663 P.2d 834 (1983)

[vii] See Purchase v. Meyer, 108 Wn.2d 220, 737 P.2d 661 (1987)

[viii] See , Schooley v. Pinch's Deli Market, 134 Wn.2d at 483

[ix] Crowe v. Gaston, 134 Wn. 2d 509 at 516m, 951 P. 2d 1118 (1998)

[x] Copeland, Kenneth. "The Economic Impact of Motor Vehicles 2000." May 2002 presentation.

[xi] Repairing the Harm: A New Vision for Crime Victim Compensation if America, Susan Herman & Michele Waul, 2004 http://www.ncvc.org/ncvc/AGP.Net/Components/documentViewer/Download.aspxnz?DocumentID=38573

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