People injured by a drunk or intoxicated driver have the right to sue for damages. The driver does not need to be convicted of a DUI before a civil lawsuit can be filed. Potential plaintiffs include passengers in the DUI driver’s vehicle, occupants of other vehicles, and pedestrians.
The plaintiff simply needs to prove that the driver was negligent under California law. A motorist is negligent when he or she:
- Fails to use reasonable care to prevent harm to others, or
- Is negligent “per se” by violating a statute, such as:
- Vehicle Code 23152(a), driving while under the influence,
- Vehicle Code 23612(a), refusing to take a DUI chemical test, or
- Driving with a blood alcohol concentration (“BAC”) in excess of California’s “legal limit” as set forth in the chart below:
|Type of Driver (CA Vehicle Code §)||CA Legal BAC Limit|
|Adult – non-commercial vehicle |
(Vehicle Code 23152(b) VC);
|Driver under 21 – DUI “per se” |
(Vehicle Code 23140 VC)
|Driver under 21 – “zero-tolerance” |
(Vehicle Code 23136 VC)
|Commercial vehicle |
(Vehicle Code 23152(d) VC)
|Uber, Lyft or taxi drivers |
(Vehicle Code 23152 (e) VC)
(beginning July 1, 2018)
Damages recoverable after being hit by DUI driver
Damages that can be recovered by someone who is hit by an intoxicated driver can include:
- Medical bills,
- Car repair bills,
- Lost wages,
- Lost earning capacity,
- Pain and suffering, and
- Punitive damages.
Families of people who are injured or killed by drunk drivers may also be able to recover damages in a lawsuit for:
To help you better understand lawsuits against DUI drivers, our California personal injury lawyers discuss, below:
- 1. When can someone sue a drunk driver in California?
- 2. When is a driver negligent under California law?
- 3. California DUI laws
- 3.1. Driving under the influence – Vehicle Code 23152(a), (f) and (g)
- 3.2. “Per se” DUI for adult drivers – Vehicle Code 23152(b)
- 3.3. Excess BAC CDL — Vehicle Code 23152(d)
- 3.4. DUI by ride-sharing, taxi or limo drivers — Vehicle Code Section 23152 (e)
- 3.5. Underage DUI – Vehicle Code 23136
- 3.6. “Zero-tolerance” law for underage drivers — Vehicle Code 23136
- 3.7. Driving while addicted to a drug — Vehicle Code 23152(c)
- 3.8. Chemical test refusal — Vehicle Code 23612(a)
- 3.9. Federal motor carrier safety regulations
- 4. The accident must be caused by the drinking or drug use
- 5. Does the defendant need to be convicted?
- 6. Damages recoverable in a lawsuit against a DUI motorist
- 7. Can families of injured people sue a DUI driver?
- 8. What if I was partly to blame for an accident with a DUI driver?
- 9. Does insurance cover DUI drivers?
- 10. What should I do if I am hit by a drunk driver?
California allows people to sue for damages when they are injured by a drunk or drugged driver.
A driver is considered intoxicated when the alcohol and/or drugs impair his or her ability to operate a vehicle safely.2
The injured party (the plaintiff) will need to prove that:
- The defendant was negligent, and
- As a result of the negligence, the plaintiff suffered damages.3
Drivers owe a “duty of care” to other motorists and pedestrians. Failure to use reasonable care to prevent harm to others when driving is considered “negligence.”4
A driver may also be deemed “negligent per se” under California law. “Per se” is a Latin phrase meaning “of itself.”
Negligence “per se” occurs when a defendant violates a law or statute meant to protect other drivers and pedestrians. In other words, violation of a statute is, in and of itself, proof of negligence.
Under California’s negligence “per se” law, a defendant is presumed negligent if:
- He or she violates a law, statute or ordinance, and
- As a result of such violation causes an injury.5
Once the plaintiff introduces evidence of negligence per se, the burden of proof shifts to the defendant to prove that:
- He or she did not violate the statute, or
- The violation of the statute did not cause the plaintiff’s injury.6
Example: Fred is a long-distance truck driver. One day as Fred is backing up his truck he hits and kills a pedestrian.
Two days before the accident, Fred smoked marijuana. A urine test after the accident reveals the marijuana in Fred’s system.
Both federal and California law prohibit commercial drivers from operating a vehicle while using drugs.7 So the victim’s family brings a California wrongful death lawsuit based on negligence per se.
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
California has a number of laws related to driving and drinking or using drugs.
Some of the most common are:
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 his or her physical or mental abilities are impaired to the extent that he/she can no longer drive as well as a cautious sober person.9
Vehicle Code 23152(b) makes it a crime anyone 21 or older to drive with a blood alcohol concentration (“BAC”) of 0.08% or higher.
If drug use is suspected, the driver will usually be required to take a blood test.11
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.
Commencing July 1, 2018, 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
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 he or she is not actually impaired.
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, the plaintiff 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.
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).
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 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,17 or
- Except in limited circumstances, while performing any safety-sensitive functions with a controlled substance in his/her system.18
Regardless of what DUI statute the defendant violated, the plaintiff must still prove that the violation caused the plaintiff’s injury.
As Los Angeles personal injury attorney Neil Shouse 19 explains:
“Whether the defendant’s drinking or drug use caused a plaintiff’s 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
A defendant does not need to be found guilty of the crime of DUI as a prerequisite to suing for damages in California.
This is because California criminal laws and civil liability laws serve different purposes and have different burdens of proof.
The burden of proof in a California DUI lawsuit
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.
But 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 the plaintiff. In addition, only nine of the 12 jurors need to agree.
A conviction for DUI 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 a California “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 DUI does not establish guilt under California’s criminal DUI laws).
But the defendant has the right to introduce evidence showing that his or her impairment did not cause the plaintiff’s damages.
Such evidence may include (but is not limited to) that:
- The accident was not caused by the defendant’s impairment, or
- The plaintiff’s injuries did not result from the accident.
Compensatory damages that can be recovered in a settlement from a DUI driver include (but are not limited to):
- Medical bills,
- Psychological counseling,
- Long- or short-term care,
- Physical or occupational rehabilitation,
- Lost wages,
- Lost earning capacity,
- Pain and suffering,
- Loss of enjoyment of life, and/or
- Loss of a limb or the use of a limb or other body part.
In each case, the plaintiff will need to prove that:
- He or she suffered such damages, and
- The damages resulted from the other driver’s negligence.21
California law permits the recovery of punitive damages when someone is injured by a drunk driver.22
To recover punitive damages in California, the plaintiff must prove by clear and convincing evidence that the defendant was guilty of:
- Fraud, or
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, the plaintiff must establish that:
- The defendant was aware of the probable dangerous consequences of his conduct, and
- He or she 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
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 when a family member is hit by a DUI driver.
Just because another driver was DUI, this does not necessarily mean he or she was 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. A plaintiff can sue even if the defendant was only slightly at fault.
Example: Beth has been drinking to celebrate her birthday. On her way home, she rolls through a stop sign. As she is doing so, Art is driving in the other direction and talking on his phone. He doesn’t see Beth roll through a stop sign.
Beth and Art collide and both are injured. When the police come, Beth blows a .08 on her DUI breath test.
Art sues Beth on a theory of negligence per se for $50,000 in medical bills and lost wages. Beth countersues for $10,000 in chiropractor bills.
A jury decides that Beth’s drinking was not the reason she drove through the stop sign. They find that Art’s inattention was the main reason for the accident. They attribute blame 30% to Beth and 70% to Art.
So Beth is entitled to 70% X $10,000 ($7,000) from Art.
Art is entitled to 30% X $50,000 ($15,000) from Beth.
The amounts are offset against each other. Beth owes Art $8,000.
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
- The plaintiff’s own uninsured / underinsured motorist policy
However, the plaintiff 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 the plaintiff’s 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, the plaintiff 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.
But 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 $10,000 in damages in a California small claims court
Someone hit by an intoxicated driver in California 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, including:
- 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.
It is also a good idea to write down everything you can remember about the accident as soon as possible afterward.
This information will be needed in order to make an insurance claim or file a lawsuit.
Injured by a DUI driver in California? Call us for help…
If you were hit by a drunk or stoned motorist, we invite you to contact our California auto accident attorneys for a free consultation.
Call us to discuss your case in confidence with an experienced California car accident attorney.
You may be entitled to significant compensation.
Injured in Las Vegas? See our related article on suing DUI drivers following an accident in Nevada.
- Note that California has two laws that apply to underage drivers who drink and drive. Violation of either may constitute “negligence per se.” But the plaintiff will still have to show that the defendant’s drinking caused the accident. This is easier to do if the defendant was DUI with a .05% or higher BAC than merely violating California’s “zero-tolerance” policy for underage drinking and driving.
- California Vehicle Code 23152 VC; Vehicle Code 23153; Vehicle Code 312.
- California Civil Jury Instructions (CACI) 400. Negligence—Essential Factual Elements.
- Same. See also Civil Code 1714(a); CACI 700. Basic Standard of Care; Bewley v. Riggs (1968) 262 Cal.App.2d 188.
- Evidence Code 669. See also CACI 418; Spriesterbach v. Holland (2013) 215 Cal.App.4th 255.
- Toste v. Calportland Construction (2016) 245 Cal.App.4th 362.
- 49 C.F.R. § 382.213; Vehicle Code 23152(f).
- Facts based on Toste, endnote 6.
- Vehicle Code 23152 and 23153; CACI 709.
- See Vehicle Code 23154.
- Vehicle Code 23612(a)(2)(C).
- Vehicle Code 23152(e). See also Public Utilities Code 5431.
- See Vehicle Code 312, endnote 2.
- Vehicle Code 23152(c); See also, Health and Safety Code 11875.
- See Vehicle Code 23612(a)(4).
- 49 CFR Part 382, Subpart B – Prohibitions.
- 49 CFR 382.201 – Alcohol concentration.
- 49 CFR 382.213 – Controlled substance use.
- A former district attorney, Harvard-educated California personal injury attorney Neil Shouse founded and manages the Shouse Law Group. He has been named one of the country’s Top 100 Civil Lawyers by the National Trial Lawyers Association.
- See Pittman v. Boiven (1967) 249 Cal.App.2d 207; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325.
- CACI 400, endnote 3.
- Taylor v. Superior Court (1979) 24 Cal.3d 890.
- Civil Code 3294(a).
- G. D. Searle (1975) 49 Cal.App.3d 22.
- Taylor, endnote 22.
- CACI 405. Comparative Fault of Plaintiff.
- Peterson v. Superior Court (1982) 31 Cal.3d 147.