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
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