If you've been the victim of a drunk driver, and are considering handling your own property damage or personal injury claim, you must understand how a DUI arrest can, and likely will, affect settlement negotiations.
These cases progress basically the same as any other property damage or injury claim. The difference lies in the type of evidence you'll need to establish liability.
How Drunk Driving Affects a Claim
There are different levels of intoxication. Whether your state classifies the crime as Driving While Intoxicated or Impaired (DWI), or Driving Under the Influence (DUI), the end result is the same. The at-fault driver's act of drinking or drugging resulted in the negligent operation of his vehicle and can rise to a recklessness claim. Those actions were the direct and proximate cause of the collision.
The act of being intoxicated can't be the actual cause of a drunk driving crash. The cause is the negligent actions of the driver due to his or her intoxication. It's essential for you to understand this subtle, but important difference.
Example: Difference Between Negligence and Cause
Andy left a bar driving his sedan after having one too many beers. On the way home, he was so drunk he didn't notice the light was red. As he drove through the light, he crashed into another car in the intersection.
In this example, Andy's drunken state was technically not the cause of the collision. The cause was the negligent act of driving through the red light. Andy's drinking caused him to operate his vehicle irresponsibly (by running the red light), which ultimately caused the accident.
Using Intoxication in Claim Negotiations
If you were the victim of a drunk driving crash, and the at-fault driver received a citation for an open container or was arrested for DUI or DWI, you'll be in a strong position when negotiating your claim. This is because it can be evidence of statutory negligence or what is called negligence per se. This means that the very act of violating the motor vehicle code is enough to establish fault -- and thus leverage, making your bodily injury claim stronger.
In drunk driving cases, the existence of a citation for an Open Container of Alcohol, or an arrest for Driving While Intoxicated or Driving Under the Influence, should be all the evidence needed to convince the claims adjuster her insured was negligent.
Here are some tips for establishing DUI or DWI:
- Tell the police officers if you smell alcohol or marijuana on the other driver's breath. In the time it takes police to arrive at the scene, the other driver may use a breath spray, or otherwise, try to conceal the odor. If you alert the police about the smell, they may administer a field sobriety test.
- See if the driver uses eye drops. He may be under the influence of marijuana, prescription or non-prescription medications, or other drugs that may not be immediately detectable. Telling the police you saw the other driver use eye drops may be enough to prompt them to administer a drug test.
- Watch to see if the other driver tries to dispose of beer cans, bottles of alcohol, or drug paraphernalia. If you saw the other driver disposing of any of these items, point it out to the police officers.
- Make sure you know which person was driving. Another tactic used by drunk drivers is to switch places with one of the passengers who hasn't been drinking. Alert the officers if you saw that happen.
Securing Proof of Drunk or Impaired Driving
Securing proof of drunk driving shouldn't be difficult. Police reports contain a separate section entitled Contributory Factors. The investigating officer will make entries in that section about outside factors they believe contributed to the drunk driving crash.
The officer will enter any of the at-fault driver's actions that they determine are the direct and proximate cause of the accident (e.g. ran a red light, followed too closely, or failed to yield). Traffic violations and the reason a driver is arrested are also listed.
You must secure a copy of the police report. It's your strongest evidence of the at-fault driver's negligence. Police reports are available at the responding officer's police station, usually within a few days after a collision. They can typically be purchased for a nominal fee of under $10.00.
An insurance company's claims adjuster knows that his insured's arrest for drunk or impaired driving is all the proof a judge or jury needs to render a verdict in your favor. And that verdict may be for a much larger amount than you're currently asking the adjuster to pay. This is powerful leverage you can apply during negotiations.
Using Independent Sources
You can use data from government and private studies of drunk driving accidents to support your evidence. Point those studies out to the claims adjuster. Your diligence in researching this information lets the adjuster know you won't hesitate to use it if the claim goes to trial.
Documentation of a driver's arrest for drunk or impaired driving is excellent evidence of negligence, but proof of a conviction is even stronger. Be sure to follow up on the driver's arrest to confirm if he is convicted.
His name, address, and date of birth will be on the police report. You can contact the States Attorney's Office and speak with the prosecutor assigned to the case. Prosecutors often contact victims before entering into any plea bargain negotiations.