Two types of damages are recoverable in a personal injury action in Virginia: compensatory and punitive.
Compensatory damages are designed to compensate the injured person for their injuries—medical bills, pain and suffering and the like. Differently, punitive damages are intended to punish the wrongdoer and to discourage others from the same type of behavior. In cases involving drunk drivers who injure other persons in car accidents, punitive damages might be available. There are three ways to obtain punitive damages in Virginia.
- One way is through the common law. In order to have a court or a jury consider an award of punitive damages in that context, the plaintiff must plead and prove the drunk driver defendant was malicious or was negligent to the degree that negligence was “so willful or wanton as to evince a conscious disregard of the rights of others.” Doe v. Isaacs, 265 Va. 531, 535 (2003). This can be very difficult and the Virginia Supreme Court has set a high standard for a plaintiff to be able to prove that level of negligence giving rise to punitive damages.
- The second way to have a court or a jury consider an award of punitive damages is by statute. Va. Code Ann. §8.01-44.5 provides that a plaintiff may recover punitive damages if he or she proves a defendant’s blood alcohol level at the time of the collision was at .15 or greater, the defendant knew or should have known his ability to operate a motor vehicle would be or was impaired and the defendant’s intoxication caused the injuries to the plaintiff. This can be done by a blood alcohol certification in the underlying criminal prosecution of the drunk driver defendant, with testimony from a toxicologist and/or with other proof.
- The third way a plaintiff may recover punitive damages under this statute is if the defendant unreasonably refused a blood alcohol test as required by Va. Code Ann. §18.2-268.2. Under the second part of Va. Code Ann. §8.01-44.5, as with the first, a plaintiff must also prove the defendant knew or should have known his ability to operate a motor vehicle would be or was impaired and the defendant’s intoxication caused the injuries to the plaintiff. The full text of §8.01-44.5 is below.
The foregoing is only a very simplified, general sketch of the availability of punitive damages in drunk driving cases in Virginia and you should see a lawyer for further explanation and counsel. If you or someone you love has been injured by a drunk driver, a Northern Virginia car accident attorney at Chaikin, Sherman, Cammarata & Siegel is available for a consultation.