You’ve been injured in an auto accident with a drunk driver.
Emergency Medical Service rushed you to the ER and you received treatment. Now you’re seeing your primary doctor and maybe some specialists…and the phone rings. That ringing phone should remind you of one thing: don’t talk to the insurance adjuster about anything until you call an experienced personal injury lawyer like those at the Nagle & Associates. Remember, the insurance adjuster represents the drunk driver exclusively, and a free legal consultation by telephone will help you understand how to protect and enforce your legal rights.
History of Drunk Driving (DWI) Incidents
Many people enjoy a drink on occasions, but the sad truth is that drunk driving is a scourge on society. When Candy Lightner lost her thirteen-year old daughter to a drunk driver in 1980, she formed Mothers Against Drunk Driving, which instantly became known as MADD. The mission of her non-profit was to stop drunk driving and support those affected by it. And for good reason. Every fifty minutes someone is killed by an alcohol-impaired driver. 1.4% of drivers in North Carolina admit driving while intoxicated, so don’t be surprised if you or your loved ones one day become a DWI crash victim.
Intoxication and Impairment
There’s different ways of saying it. The guy or gal on the street usually calls it “drunk driving”. In some states it’s referred to as a DUI or “Driving Under the Influence.” In North Carolina, our statutory law labels it Driving While Intoxicated or DWI. The name is unimportant because driving while impaired on the North Carolina highways and byways is illegal, with legal consequences for the impaired driver and increased rights for injured victims.
The basic law in North Carolina is set out in N.C. General Statue section 20-138.1. This statute makes it unlawful to operate a vehicle with an alcohol level of .08 or higher, or while obviously impaired -- regardless of the results of a Breathalyzer or blood test. For commercial drivers there is less tolerance, with the alcohol limit drawn at .04 percent. Alcohol, of course, is not the only cause of impaired driving.
Under that same North Carolina statute, it is illegal to drive while under the influence of prescribed or illegal drugs or some combination of drugs and alcohol which compromise a driver’s mental or physical capacity to drive safely. Since any combination of substances can create impairment, this also includes situations where the driver’s Blood Alcohol level falls below the legal limit but because of pills the driver has taken he cannot drive safely. Relevant here is whether the driver was taking prescribed pills that expressly warn not to combine with alcohol and/or not to take while driving.
Safety first. At any accident scene, the first thing you should do is to protect and secure the safety of yourself and others. Your ability to do this, of course, may be compromised if you have been severely injured, your auto air bags have inflated, or you are trapped in a mangled vehicle.
This #1 rule of vehicle accidents is commensurate to the notice you receive when flying as a passenger on a commercial airliner. “Apply your mask before helping a minor.” The logic of self-care – the principle at work - is the same for both: once you’re stable, you can better help others.
In those situations where you are able, there is a checklist of things that you also need to do at every vehicle accident scene. For those of you who read our blogs regularly, you’ll find this repetitive, but it does bear repeating and it is particularly valuable information in the context of drunk driving accidents:
- Take photos (or video) of the accident scene, the vehicles involved, the road conditions, and anything else that might help reconstruct the accident later. Ask others to do this for you as well. If the driver who caused the accident is drunk, his drunken behavior and slurring speech can be caught on a phone video.
- Get the details for the other driver, including all information on his or her driver’s license, the license plate number, the make and model of the car, and all insurance particulars. The investigating officer will secure this for you, but be sure that this information is captured. Always call police as unreported accidents are often later challenged by insurance carriers. If you see any evidence of intoxication, again a video may be in order.
- Cooperate with and get all details for all emergency and law enforcement responders: EMS, firemen, police, and anyone else on the scene in an official capacity.
- Make a list of all witnesses to the accident and get their contact information. These witnesses may be able to establish, not only that the drunk driver was at fault, but that you were not and that the driver was clearly unfit to drive.
- Approach the above-listed steps with diplomacy! It is important to protect your rights and preserve evidence. However, it is also important to remember that the steps you personally take at an accident scene may be later judged by the insurance carrier’s defense attorneys at trial. For example, if a relatively low-force collision results in an injury claim, the defense may show that the victim spent considerable time recording phone video at the scene. They then argue that the victim was not truly injured, but rather began from the moment of the collision seeking solely to build a claim for money damages. Secure video without making background statements, and secure information with an eye toward pride and privacy.
Contributory Negligence in DWI Cases:
Your own potential fault is perhaps the number one reason you should NEVER talk to an insurance adjuster in any personal injury case. This is because North Carolina is one of the very few states that still embrace the legal doctrine of contributory negligence. This doctrine bars all payment rights to any injured party who is found to have been even slightly at fault for the collision. This law is typically referred to as “the 1% rule” – if an injury victim is just 1% at fault for causing their collision or attendant injuries, they have NO claims and no right to receive money from the at-fault driver.
As a former insurance adjuster and former insurance defense lawyer, Mr. Nagle knows all of the tricks insurance adjusters pull when they call. Their number one goal in North Carolina is to get you to talk freely and admit to facts that prove you were contributory negligent. And if they can get that information, you may be barred from recovery. Fortunately, in North Carolina, drunk drivers cannot shield themselves with this defense in most cases, depending on whether the injured victim is a passenger in the drunk driver’s vehicle.
Generally speaking, drunk drivers cannot raise your potential contributory negligence as a defense to a personal injury claim. That’s because North Carolina recognizes three situations where the absolute bar of contributory negligence does not apply, all involving willful and wanton behavior by the at-fault driver. One is driving while intoxicated, two is driving at excess speeds, and three is street-racing. If the negligent driver has done all or any of these things, the insurance adjuster will come up empty-handed even if you were also driving carelessly.
Passenger in Drunk Driver’s Vehicle
Oddly, a passenger in the drunk driver’s car typically will not receive the benefit of this exemption. That’s because, in North Carolina, passengers who know or should have known that the vehicle driver was intoxicated may still be barred from recovering. If as a passenger you should reasonably know that the driver is legally intoxicated, and you choose to ride with him or her anyway, you likely will be totally barred from any financial recovery.
Sadly, two North Carolina appellate decisions confirm this harsh result – Taylor vs. Coats (boyfriend knew his girlfriend, the driver, was drunk) and Bullins vs. Walker (severely injured woman barred from recovery though she felt coerced into riding with the driver after eating dinner at a restaurant). In both, the North Carolina appellate court ruled that a passenger who voluntarily rides with a drunk driver is contributory negligent and therefore barred from recovering for any personal injuries suffered in a drunk driving accident.
How this harsh result dovetails with the exemption for drunk drivers is hard to reconcile, which is another reason is it crucial for injured victims to consult with experienced counsel like those at the Nagle & Associates. If an impaired driver’s passenger is injured in a crash, they must show that they had no reason to know that their driver was impaired.
Punitive Damages in DWI Cases:
Punitive damages are damages awarded to an injured victim when the defendant’s behavior has been willful or wanton – which North Carolina case law typically equates with intentional harm and wrongdoing. Since drunk driving may well fit this description, all such cases must be analysed to determine if punitive damages are appropriate in the case.
In North Carolina, there is a cap on how much money can be awarded for punitive damages according to a two-prong test that allows three times the amount of compensatory damages awarded, or $250,000, whichever is greater. Fortunately for drunk driving victims, as a matter of public policy the state legislature has exempted drunk driving from this cap on damages. In other words, there is no statutory limit on the dollar amount of amount of punitive damages that can be imposed on a drunk driver.
That does not mean, however, that punitive damages are automatic in drunk driving injury cases. Many factors must still be taken into account. For starters, the driver’s Blood Alcohol level – even if over the limit – is usually not enough to trigger the exemption. The proof must clearly establish that the defendant drove, not merely while intoxicated, but willfully and wantonly without regard to the safety of others. Also, our “exemplary damages” statute provides that punitive damages typically are not awarded if the at-fault party is being punished in another forum. Thus, for first offenders, there is typically no right for the victim to collect punitive damages. The exception is where speed or other aggravating factors can be proven. Also, if the drunk driver has prior or subsequent DWI charges, we can then show that the driver is not deterred by the sentence imposed by criminal courts and, therefore, that punitive damages should be awarded to the crash victim(s).
At Nagle & Associates, we have been representing crash victims who suffer personal injury caused by drunk drivers for decades. We know the insurance company tricks, the nuances of contributory negligence, and how to establish and prove the elements of a valuable punitive damages case - all combining to maximize your car accident settlement or personal injury trial verdict. Call us anytime, day or night for a free consultation.