Hit by a DUI Driver? How to Sue for Money Damages

If you are injured by a drunk or intoxicated driver, you have the right to sue for damages. The perpetrator does not need to be convicted of a DUI before a civil lawsuit can be filed.

You simply need to prove that the driver was negligent under California law. A motorist is negligent when they:

• Fail to use reasonable care to prevent harm to others, or
• Are negligent “per se” by violating a statute, such as Vehicle Code 23152(b) that prohibits driving with an illegal blood alcohol content (BAC).

The following chart outlines the BAC limits for motorists in California:

Type of Driver (CA Vehicle Code §)	CA Legal BAC Limit
Adult – non-commercial vehicle (Vehicle Code 23152(b) VC);	.08%
Driver under 21 – DUI “per se” (Vehicle Code 23140 VC)	.05%
Driver under 21 – “zero-tolerance” (Vehicle Code 23136 VC)	.01%1
Commercial vehicle (Vehicle Code 23152(d) VC)	.04%
Uber, Lyft or taxi drivers (Vehicle Code 23152 (e) VC)	.04%

To help you better understand lawsuits against DUI drivers, our California personal injury lawyers discuss, below:

• 1. When can I sue a drunk driver in California?
• 2. When is a driver negligent?
• 3. Applicable DUI Laws
• 4. Must the accident be caused by drinking or drug use?
• 5. Does the defendant need to be convicted?
• 6. Damages
• 7. Can families of injured people sue?
• 8. What if I was partly to blame?
• 9. Does insurance cover DUI drivers?
• 10. What should I do if I am hit by a drunk driver? 
• Additional Reading

1. When can I sue a drunk driver in California?

California allows you to sue for damages when you are injured by a drunk or drugged driver. A driver is considered intoxicated when the alcohol and/or drugs impair their ability to operate a vehicle safely.

You as the injured party (the plaintiff) will need to prove that:

• The defendant was negligent, and
• As a result of the negligence, you suffered damages.²

Note that DUI lawsuits are very common in California because there are so many drunk driving arrests. In 2019 alone, there were

• 27,333 alcohol-related crash injuries;
• 1,187 alcohol-related crash deaths;
• 2,998 drug-related crash injuries; and
• 798 drug-related crash deaths.³

2. When is a driver negligent?

Drivers owe a “duty of care” to other motorists and pedestrians. Failure to use reasonable care to prevent harm to others when driving is “negligence.”⁴

A driver is also “negligent per se” when they injure you by violating a law meant to protect other drivers and pedestrians. In other words, violation of a statute is, in and of itself, proof of negligence.⁵

Once you introduce evidence of negligence per se during trial, the burden of proof shifts to the defendant to prove that:

• They did not violate the statute, or
• The violation of the statute did not cause your injury.⁶

Example: Fred is a long-distance truck driver who accidentally kills a pedestrian. The victim’s family brings a California wrongful death lawsuit based on negligence per se because marijuana was found in his urine.⁷

However, the jury finds that Fred’s driving ability was not impaired, and that the marijuana was not a substantial factor in causing the accident. As a result, Fred is not liable for damages⁸

3. Applicable DUI Laws

California has a number of laws related to driving and drinking or using drugs. Some of the most common are:

Driving Under the Influence – Vehicle Code 23152(a), (f) and (g)

California’s basic DUI law is set forth in Vehicle Code 23152 VC. Under VC 23152(a) it is a crime to operate a motor vehicle while “under the influence” of alcohol and/or drugs.

A driver is “under the influence” if their physical or mental abilities are impaired to the extent that they can no longer drive as well as a cautious sober person.⁹

“Per se” DUI for Adult Drivers – Vehicle Code 23152(b)

Vehicle Code 23152(b) makes it a crime for anyone 21 or older to drive with a blood alcohol concentration (“BAC”) of 0.08% or higher.

BAC is measured by a chemical test – usually a breath test or blood test – taken at the time of an arrest.¹⁰

If drug use is suspected, the driver will usually be required to take a blood test.¹¹

Excess BAC CDL — Vehicle Code 23152(d)

Vehicle Code 23152(d) makes it a crime to drive a commercial vehicle with a BAC of .04% or higher.

This offense is sometimes known as “Excess BAC CDL.”

Commercial drivers who drive between states are also subject to federal motor carrier safety laws, as discussed in subsection 3.9, below.

DUI by Ride-Sharing, Taxi or Limo Drivers — Vehicle Code Section 23152 (e)

It is illegal for anyone to drive with a BAC of 0.04% or higher when a passenger for hire is in the vehicle.

“Passenger for hire” means anyone who is paying for the driver’s services. This includes drivers of ride-sharing services such as Uber or Lyft as well as taxi and limo drivers.¹²

Underage DUI – Vehicle Code 23136

Vehicle Code 23140 makes it a crime for a driver under age 21 to drive with a BAC of .05% or higher.

An underage driver with a BAC of .05% or higher is considered too drunk to drive, even if they are not actually impaired.

“Zero-Tolerance” Law for Underage Drivers — Vehicle Code 23136

California also has a “zero-tolerance” law for underage drivers. Under Vehicle Code 23136, it is an infraction for an underage driver to have a BAC of .01% or higher while behind the wheel.

Although this is not technically a DUI, it is a violation of law. So by testing positive for any alcohol, an underage driver will be considered negligent per se if sued in a civil lawsuit.

However, you will still need to prove that the accident was caused by the defendant’s impairment. It may be hard to do this if the only statute violated was VC 23136.

Driving While Addicted to a Drug — Vehicle Code 23152(c)

California Vehicle Code 23152(c) makes it unlawful for a person who is addicted to the use of any drug to drive a vehicle. This includes prescription and over-the-counter medications.¹³

There is an exception for people who are participating in a court-approved narcotics treatment program for opioid dependence.

In such a case, use of a substance such as Methadone, LAAM or Buprenorphine does not constitute a violation of Vehicle Code 23152(c).¹⁴ (However, a driver on these substances may still be negligent for other reasons.)

Chemical Test Refusal — Vehicle Code 23612(a)

California Vehicle Code 23612 VC sets forth California’s “implied consent” law. It states that by driving in California, motorists give their consent to a chemical test if lawfully arrested on suspicion of DUI.

Refusing to take a chemical test is a violation of VC 23612. Therefore, a driver who refuses to take a breath or blood test may be considered “negligent” per se.

The jury may conclude that a refusal to take a test means the defendant was inebriated.¹⁵

Federal Motor Carrier Safety Regulations

Federal law prohibits interstate drivers of commercial vehicles from driving under the influence.¹⁶

Among other prohibitions, a commercial driver is prohibited from driving:

• With a BAC of .04% or higher, or
• Except in limited circumstances, while performing any safety-sensitive functions with a controlled substance in his/her system.¹⁷

Social Hosts and Bar Liability

In California, the law provides immunity to social hosts and establishments from legal responsibility for any harm caused by serving alcohol to an individual.

Nevertheless, if a visibly intoxicated minor is served by an individual or business and subsequently causes an accident that results in injuries, the party responsible for serving the alcohol may be held liable for the damages incurred.¹⁸

4. Must the accident be caused by drinking or drug use?

Yes. Regardless of what DUI statute the defendant violated, you must still prove that the violation caused your injury.

As Los Angeles personal injury attorney Neil Shouse¹⁹ explains:

“Whether the defendant’s drinking or drug use caused your injuries is a question of fact for the jury to decide. It’s my job as a California plaintiff’s injury lawyer to connect the dots for the jury so the defendant can be held accountable.”²⁰

5. Does the defendant need to be convicted?

A defendant does not need to be found guilty of drunk driving as a prerequisite to you suing for damages. This is because California criminal laws and civil liability laws serve different purposes and have different burdens of proof.

Criminal DUI laws exist to punish drunk drivers and deter others from driving while intoxicated. Guilt must be established “beyond a reasonable doubt”, and all 12 jurors must agree.

Meanwhile, civil liability exists to compensate victims of wrongful acts. Liability need only be established by a “preponderance of the evidence.”

“Preponderance of the evidence” in a DUI lawsuit means it is “more likely than not” that the defendant drove under the influence and injured you. In addition, only nine of the 12 jurors need to agree.

Is a DUI conviction proof of negligence?

A conviction for driving under the influence is sufficient to prove that the defendant was negligent per se. This is because violation of a statute constitutes per se negligence under California law.

So even if the defendant avoids jail time by pleading to “dry reckless” or other vehicle code violation, it will still be negligence per se.

(Note that it does not work the other way around. Being found liable in a civil lawsuit for driving drunk does not establish guilt under California’s criminal DUI laws).

If you take a defendant to court after they were convicted of DUI, they still have the right to introduce evidence to try to show that their impairment did not cause your damages.

6. Damages

If you sue a DUI driver for a car accident, you may be able to recover such compensatory damages as:

• Medical bills,
• Car repair bills,
• Lost wages,
• Lost earning capacity,
• Pain and suffering,
• Psychological counseling,
• Long- or short-term care,
• Physical or occupational rehabilitation,
• Loss of enjoyment of life, and/or
• Scarring, disfigurement, and/or loss of a limb or the use of a limb or other body part.

In each case, you will need to prove that:

• You suffered such damages, and
• The damages resulted from the other driver’s negligence.²¹

Can I get punitive damages?

California law permits the recovery of punitive damages when you are injured by a drunk driver.²²

To recover punitive damages, you must prove by clear and convincing evidence that the defendant was guilty of:

• Oppression,
• Fraud, or
• Malice.²³

Malice is usually what will apply in a drunk driving case. In this context, “malice” does not mean evil or bad intent. Rather, California Civil Code 3294(c)(a) provides:

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

When does drunk driving constitute malice?

To justify an award of punitive damages under the “malice” test, you must establish that:

• The defendant was aware of the probable dangerous consequences of their conduct, and
• They willfully and deliberately failed to avoid those consequences.²⁴

The California Supreme Court has held that this test is met when:

• Someone voluntarily consumes alcoholic beverages and/or drugs to the point of intoxication, and
• That person knows (s)he must thereafter operate a motor vehicle.²⁵

7. Can families of injured people sue?

Yes. Families of people who are hit by drunk drivers may be able to recover damages in a lawsuit. Possible bases for recovery include:

• Loss of consortium,
• Wrongful death, or
• A California “survival” action.

All of these causes of action arise from the loss of the companionship and financial support of a loved one.

In many cases, punitive damages are recoverable as well when a family member is hit by a DUI driver.

8. What if I was partly to blame?

Just because another driver was DUI does not necessarily mean they were 100% responsible for an accident.

California follows a “comparative fault” standard of negligence. Also known as “comparative negligence” or “shared fault,” it allows a jury to apportion fault for an accident between two or more parties.²⁶

Unlike some states (such as Nevada), California does not require that the defendant be 50% or more responsible for an injury. You can sue even if the defendant was only slightly at fault.

Example: Beth and Art counter-sue each other after a car accident. A jury decides that Beth’s slightly high BAC level was not the reason she drove through the stop sign. They find that Art’s texting while driving was the main reason for the accident. They attribute blame 30% to Beth and 70% to Art.

 9. Does insurance cover DUI drivers?

Most California auto insurance policies will pay compensatory damages when a policyholder injures someone while driving drunk. This means that compensatory damages (such as medical bills) can be recovered under:

• The DUI driver’s third-party auto liability insurance (up to policy limits), or
• Your own uninsured / underinsured motorist policy

However, you may have to sue a defendant directly if:

• There is no insurance that covers the accident, or
• The aggregate policy limits of all applicable policies do not cover your damages.

Will insurance cover punitive damages?

California public policy prohibits the payment of punitive damage awards by an insurer.²⁷

Therefore, if awarded punitive damages, you will have to try to collect directly from the defendant.  This may prove impossible If the defendant has no assets or too little to cover the full award.

However, insurance companies will still pay for compensatory damages such as medical and car repair bills. An experienced California car accident lawyer can analyze your case and the defendant’s assets and help you determine whether it is worth it to file suit.

You may also be able to recover up to $12,500 in damages in a California small claims court.

 10. What should I do if I am hit by a drunk driver?

If you are hit by an intoxicated driver in California, you should call the police, if possible. A police report and chemical test (if one was given) are the best way to prove someone was operating a motor vehicle while drunk or high.

Regardless of whether the driver was drunk, there are 15 steps everyone should take after a car accident in California. These include getting information from the other driver, such as:

• Name,
• Driver’s license number,
• License plate number,
• Vehicle Identification Number (VIN),
• Insurance company name and phone number, and
• Insurance policy number.

Photos or video of the vehicles and the accident site are also extremely useful. If there is an open container in the other driver’s vehicle, try to photograph that as well.

Also gather the contact information of eyewitnesses so your attorney can ask them for witness statements. Maybe one of them saw the other driver swerving or trying to avoid blame by switching seats with a passenger after the accident.

It is also a good idea to write down everything you can remember about the accident as soon as possible afterward. Also consult an attorney about how to preserve any physical evidence. This information will be needed in order to make an insurance claim or file a lawsuit.

Additional Reading

Refer to our related articles by our California car accident lawyers:

• Vehicle Collisions – California DMV guide about what to do after a crash.
• Traffic Conditions – California Highway Patrol information page on current traffic incidents.
• Motorcycle Accident Lawsuit in California – A legal guide
• Trucking Accident Lawsuit – How to bring a claim for damages.
• Lawsuits for SUV Rollover Accidents – Your options after an accident.
• E-bike Accident Lawsuit – How to bring a claim.
• Pedestrian Hit By Car in California – How to bring a lawsuit.

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