Bottom-Line-Up-Front: Yes! We do it all the time.

The Long Answer: Driving a car while under the influence and causing a crash is nearly certainly negligent. Further, it is the type of thing that potentially justifies an award of punitive damages. There are a lot of intricate legal issues in this type of case because many times there will be a concurrent criminal process, administrative law process related to the Implied Consent law, as well as specific statutes that make discovery easier for someone who has been injured by a drunk driver. For example ORS 135.857 says:

135.857 Disclosure to victim; conditions.

1) In any criminal prosecution arising from an automobile collision in which the defendant is alleged to have been under the influence of alcohol or drugs, the district attorney prosecuting the action shall make available, upon request, to the victim or victims and to their attorney, or to the survivors of the victim or victims and to their attorney, all reports and information disclosed to the defendant pursuant to ORS 135.873. The reports and information shall be made available at the same time as it is disclosed to the defendant or as soon thereafter as may be practicable after a request is received. The district attorney may impose such conditions as may be reasonable and necessary to prevent the release of the reports and information from interfering with the trial of the defendant. The district attorney may apply to the court for an order requiring any person receiving such reports and information with the conditions of release.

2) For the purpose of this section:

a) “District attorney” has that meaning given in ORS 131.005.

b) “Drug” has that meaning given in ORS 475.005 [1991 c.299 2]

So specifically in a drunk driving case (if you know the law) you get easier access to evidence in your car crash case. Because of our experience in all legal areas related to drunk driving we at Hunking Law are uniquely positioned to leverage each and every legal system to help you get the compensation you deserve.

Bottom-Line-Up-Front: Almost Certainly

The Long Answer: This only really makes sense in the form of a story so that we can apply the rules to a more concrete scenario and don’t need to discuss the rules in the abstract. In the abstract, negligence and DUII are separate concepts with separate legal analyses - they are not exactly the same. Once, long ago in my legal career, three cars were leaving a Ducks game on a path to Florence. The last car in the line of three cars rear-ended the second car who rear-ended the first car and everyone was injured. The police arrived to try and clear the area and all three drivers were under the influence of alcohol. All three got DUII’s and in dealing with the compensation for injuries it was a little muddy. That said, the car that did the first rear-end was most at fault, the second car less at fault and the third car (the front car) was even less at fault. None of them should have been driving. None of them should have been on the road, but just because they were driving drunk did not make them equally at fault for the crash. For nearly all drunk driving crashes there is only one drunk driver and as a result nearly all the time they are at fault for the crash; not because they are drunk, but because their driving (and our perception of their driving) is impaired.

Bottom-Line-Up-Front: Everything is the same, except there is an entire DUII process that gets layered on top of the car crash.

The Long Answer: In addition to the civil responsibility that accrues when any driver causes a crash negligently, when the driver is drunk there is a very high possibility that an additional layer of criminal and administrative process will layer itself on top of the crash. While I would love to answer this in an FAQ there is frankly years-worth of knowledge required to see this interaction of the law correctly and to frame it in a way that makes any sense. Here are some examples of the concepts that come into play:

(1) The Administrative law process under Oregon’s Implied Consent law.

(2) How blood draw warrants work.

(3) What the lab process is for testing the blood work in Oregon, and what happens if the blood is sent to a lab outside of Oregon.

(4) What happens when your car is impounded as evidence and how this effects property damage evaluation and payment.

(5) How the civil compromise system works.

(6) etc.

This is a great question. It takes lawyers years to understand the varying ways in which this complex system functions. Rest assured, our attorneys are experts in navigating this system and can guide you through the additional legal processes that come with a crash involving a drunk driver.

Bottom-Line-Up-Front: Absolutely.

The Long Answer: Fault in the sense of negligence in a civil case is separate and distinct from whether someone committed the crime of DUII. As a matter of common sense, it is more likely that the impaired driver is at fault for a crash; but that does not need to be true. It can be that a person is intoxicated while driving and they get rear-ended at a stop light by a sober driver. In that case the intoxicated driver may have committed a crime but could also not be at fault for the crash. An interesting part about being a lawyer is that all sorts of crazy factual circumstances can and do occur in the real world. So certainly, there could be a situation in which multiple parties are at fault for a DUII crash.

Bottom-Line-Up-Front: Then the damages in the case are probably higher.

The Long Answer: Today, texting and driving is pretty obviously dangerous. That was not always obvious to people when cell phones were new. 

According to the NHTSA: The NHTSA even put out a slick ad campaign about it (https://www.nhtsa.gov/campaign/distracted-driving). So, at this point the level of mental culpability for a person texting and driving is pretty much assumed and thus a jury would be

less forgiving for making that choice. Further, it potentially could be a source of an award of punitive damages. Either way, insurance companies and plaintiff’s attorneys and insurance defense attorneys pretty much agree at this point that the same crash factually is worse when the at fault person was texting or distracted.

Bottom-Line-Up-Front: Call a Lawyer.

The Long Answer: First and foremost, if this happened to your loved one I am sorry for your loss. A Wrongful Death Claim after a DUII crash is a terrible circumstance that nearly always needs a lawyer to handle correctly. Because the person is deceased, there will likely need to be a probate case initiated in order to get court approval to act on behalf of the estate of the deceased victim of the car crash. That process can theoretically be done without an attorney, but it is well worth the investment to just let a lawyer handle it. Next, because you are acting on behalf of an Estate you will likely need court approval for any settlement. As above, technically this could be done without an attorney, but it is well worth the investment to just let an attorney handle it. This is the type of work that we do unfortunately too regularly; but in every single circumstance I have reached the conclusion that but for the help and support of the attorney and their staff the process would have been substantially more difficult for a family that is already dealing with a terrible and sudden loss of a loved one.

Call an attorney!

The Long Answer: These types of crashes, in the legal sense, have lots of moving parts. If the police responded then it is likely that the other person was issued a citation or taken to jail. That initiates a criminal legal process that moves quickly. Police and prosecutors are likely to want to speak with you and ask you detailed questions about what happened. Prosecutor's offices have victim's services sections that may reach out to you and try to keep you informed of your rights in the criminal case. In Oregon, you have constitutional rights as a victim in that proceeding to potentially play an active role in the prosecution; but keep in mind the prosecutor represents the State of Oregon against the drunk driver, they are pursuing Oregon's goals, which may not always be the same as your goals. You have access to discovery (police reports, BAC reports, pictures and video, etc.) that is provided to you via statute, but you need to properly request that information in order to assert that right. Importantly, if the drunk driver was over-served at a bar, pub, restaurant, or any establishment that serves alcohol for consumption on the premises they may be liable as well for serving alcohol to a visibly intoxicated person who later caused you damage. But, you have a very short 180 days under the Dram Shop Act to be sure you have properly perfected your legal rights. Because there are so many moving parts, and because the wealth of experience we have on both sides of the aisle in these types of cases we at Hunking Law have the experience and knowledge to make sure that you have protected every legal right you have and to help you get the best possible outcome as the injured party.

Bottom-Line-Up-Front: Insurance Policy 

LimitsThe Long Answer: Unless it is a very mild set of injuries or a very low blood alcohol contentfor the drunk driver or there is some other reason to be very sympathetic to the drunk driver(which there rarely is) then I would expect to get the policy limits from any at-faultinsurance policy. The lowest policy amount in Oregon is $25,000 so I would say a minimumof $25,000. We have settled many of these cases for $50,000 or $100,000 and up to over$1,000,000. It really depends a lot on how much insurance money is available.

Bottom-Line-Up-Front: Compensatory and probably Punitive Damages

The Long Answer: Compensatory damages are measured by trying to compensate you forany harm done. The goal is to put you back where you were if the drunk driver had nevercrashed into you. There are two recognized types of compensatory damages in Oregon andthey are defined by statute: (1) Economic, (2) Noneconomic. The basic difference betweenthe two is that economic damages can be reduced to verifiable monetary losses whilenoneconomic damages cannot be so reduced. For example if you break your leg in thecrash the cost of medical care to fix the broken leg can be reduced to dollars and istherefore an economic damage; but the pain of having a broken leg is certainly somethingyou felt, but not something that can be reduced to a verifiable monetaryamount. Additionally Oregon has a set of rules pertaining to Punitive damages. Punitivedamages are meant to punish the drunk driver and to deter recidivate behavior. All of thesetypes of damages are potentially claimable after being hit by a drunk driver in Oregon.

Bottom-Line-Up-Front: Absolutely.

The Long Answer: Absolutely you can recover pain and suffering after a DUI crash for anythat you incurred. There is no doubt in my mind that this type of damage, if caused by theDUI Crash, is recoverable from the tort-feasor in Oregon (assuming you met the Statute ofLimitations and otherwise properly claimed the damages).