Drunk Driving FAQ’s

Virginia Code Section 18.2-269 (Link to subordinate page for code – see below for content) establishes the levels, under the criminal statutes for presumptions of intoxication based upon blood alcohol concentrations and generally establish intoxication at a level of .08 or above. Virginia Code Section 8.01-44.5 (link to subordinate page for this code section, see content below) applies in the civil setting to establish that an intoxicated driver who causes injury to another, may be subject to a claim for punitive damages if his blood alcohol level exceeds .15.

Yes, it does. Under Virginia law, the injuries inflicted by a drunk driver, and damages that may be recoverable, for both compensation and punitive damages, all fall under the coverage required to be issued by Insurance companies issuing auto policies in Virginia. Furthermore, the provisions of your Uninsured Motorist coverage, under your policy, are required to give you the same protection if you are injured by a drunk driver, who has no insurance.

Virginia’s two year statute of limitations applied to actions for injuries in automobile collision cases, regardless of whether the other driver was drunk.

The damages that any injured person can recover, from the wrongdoer who was negligent, as compensation for the injury include sums for the bodily injury, medical expenses, lost wages, pain, suffering, mental stresses, embarrassment, humiliation, scarring, and future damages for these elements if the injury is permanent. These same compensatory damages are allowed against a drunk driver. In addition, however, Virginia law allows a person injured by a drunk driver, if the conduct of the drunk was outrageous enough, or if the blood alcohol level of the drunk was high enough (.15 or higher), to recover punitive damages. These damages are allowed not to compensation you for your losses, but to punish the wrongdoer for his conduct, and, to a certain extent, to send a message to the community that such conduct will not be tolerated.

In Virginia, no such liability has been approved by the Supreme Court. In other states, such actions are either authorized under specific statutes, or established under common law as “dram shop” actions. In those situations, depending upon the requirements of the law, an injured party may proceed against the provider of the alcohol to the drunk driver. If you are injured in a collision in another state, or find that the drunk driver became drunk in another state and caused injury to you in Virginia, call Epstein, Sandler & Flora, so that we can evaluate whether there is liability that may rest for your injuries with someone other than the drunk driver.

The issue of intoxication may be proven by circumstantial evidence, such as the behavior of the drunk while driving, her demeanor and conduct after the crash, or from the blood alcohol results obtained by the investigating police. Many times, the proof for a civil action will have to be obtained from an expert witness in the specialty of toxicology. Your attorney may need to retain the services of such an expert to establish the level of blood alcohol in the drunk’s system at the time of the collision, so that we can prove a particular level that will allow us to secure punitive damages.

Subordinate page for Virginia Code Section 18.2-269 § 18.2-269. Presumptions from alcohol or drug content of blood. —

A. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 18.2-266, or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused’s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:

(1) If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused’s blood or 0.05 grams or less per 210 liters of the accused’s breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;

(2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused’s blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused’s breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;

(3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or

(4) If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.
Subordinate page for code section 8.01-44.5 § 8.01-44.5. Exemplary damages for persons injured by intoxicated drivers. — In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.

A defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff.

However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, a defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent. A certified copy of a court’s determination of unreasonable refusal pursuant to § 18.2-268.3 shall be prima facie evidence that the defendant unreasonably refused to submit to the test.

The determination of disability is made either by the Disability Determination Services agency of your state, or by and Administrative Law Judge at the SSA level. There a multitude of factors that go into the disability determination, and you cannot predict whether you will be determined to qualify. There are certain catastrophic medical conditions that may make it highly likely that you will be found to be disabled, however it is best to discuss your individual case with a social security disability lawyer, such as those atEpstein, Sandler & Flora, PC. to get an understanding of what will be needed to be proven in your case.

Even though you file your case with the Social Security Administration, at a local office, all cases are referred to the state Disability Determination Services agency (DDS). It is their job to gather the medical evidence from your doctors and your prior work information. They will, in the SSDI cases, obtain your prior payment information to make sure you are “insured”, and they will make the initial decision, using medical and non-medical personnel, about your disability. If your claim is denied, then the case, will be Reconsidered by different personnel at the same agency. If your claim is still denied, you may request a hearing before an Administrative Law Judge. It is at this level that SSA personnel review the case and make a decision on disability. This is the only review where you actually get to see, hear and speak to the person making the decision in your case.

In SSDI cases, you cannot receive benefits for the first 5 months after you become disabled. This is referred to as your waiting period. Also, benefits cannot be paid back any further than one year before the date that you filed your claim. In SSI cases, you will receive benefits commencing with the date of your application, but not before, even if your disability started before you filed your application for benefits.

The time that it takes to receive a final favorable determination depends upon the location in the country as there are backlogs that vary. The average time for a decision on the initial application can be 3-6 months. The average time for a decision at the Reconsideration level can be 2-4 months. The average time between filing an appeal to the Administrative Law Judge, and the actual hearing can range from 9-18 months, and in some areas, 2 years. The SSA is continuously trying to address the backlog issue.

The hearings are fairly informal. The only people likely to be there are the judge, a secretary operating a tape recorder, the claimant, the claimant’s attorney, and anyone else the claimant has brought with him or her. In some cases, the Administrative Law Judge has a medical doctor or vocational expert present to testify at the hearing. There is no jury nor are there any spectators at the hearing. There is no attorney at the hearing representing Social Security trying to get the judge to deny the disability claim.

No. The process of claim review at the stages of the initial application and the Reconsideration rarely involve an attorney, as you have little input in the decision process. While you do not have to have an attorney at the hearing stage, statistically you are likely to have a better chance at a favorable result, when an attorney is involved to gather and present evidence, with an understanding of the issues to be determined by the Administrative Law Judge.

Social Security’s position is that it is not up to your doctor to determine whether or not you are disabled. Disability is not entirely a medical determination, as it is based upon how your limitations affect your ability to work. The SSA and the ALJ make the determination of whether you are disabled.

No. There are no percentages of disability in Social Security disability determination. For purposes of Social Security disability benefits, you are either disabled or not disabled. There are no percentages of disability, nor any percentages of disability benefits.

Yes. Mental illness is a frequent basis for awarding Social Security disability benefits. In addition, emotional or mental impairments may, when coupled with physical limitations, may qualify for disability.

No. When you reach full retirement age, nothing will change, except for Social Security purposes, your benefits will be called retirement benefits instead of disability benefits.