Drunk Driving Accidents

Accidents Caused by Drunk and Intoxicated Drivers: 

Getting hit by an intoxicated driver can be life altering. Sometimes it is apparent when a driver is impaired, other times it is not. Impairment can come in many forms. A driver can be impaired by: drugs, alcohol, prescription medication, polysubstances (the mixing of multiple substances at once) and even abuse of over the counter medications. 

Why You Should Hire an Attorney: 

Most people put off calling an attorney, because quite frankly, it’s just another thing on your plate during an already stressful time. Getting hit by a drunk or high driver is a traumatic event, it can feel overwhelming and come with many mixed emotions. That being said, hiring an attorney as soon as possible is critical because: 

1. Critical evidence can be lost and the attorney can send legal requests for preservation of evidence; 
2. An attorney can secure surveillance videos near the scene which may bolster your case; 
3. An attorney can follow the criminal aspect of the criminal case against the intoxicated driver so that it does not fall through the cracks on the criminal side. A criminal conviction can assist in your civil case;
4. An attorney can engage experts to do their own testing, which is best done as close in time to the collision as possible; and 
5. An attorney will know the standards for certain industries which may require mandatory testing – such as commercial truck drivers – and if these regulations were not followed, they can be used to assist in your case. 

Punitive Damages Available in Louisiana for Collisions Caused by Drunk and High Drivers: 

Louisiana law only allows punitive damages awards in certain circumstances. Punitive damages are allowed for victims who have suffered damages and injuries because of an intoxicated driver. The state law which provides for this is found in Louisiana Civil Code Article 2315.4, which provides: “In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.”

What’s the Burden of Proof?: 

Whether a driver was intoxicated at the time of a collision, and whether the driver’s intoxication was a cause in fact of a collision, are inherently factual issues which are decided by examining the totality of the circumstances on a case-by-case basis. Toxicology tests are not necessarily required to prove intoxication. For example, if you were hit by a drunk driver and you spoke with that drunk driver and smelled alcohol on their breath and then the drunk driver fled the scene, your testimony could be critical evidence. You could still pursue a case even though the driver fled the scene and didn’t wait for the police to arrive. A breathalyzer or drug test is not necessary to win a claim for punitive damages, although it obviously will help your case if there is objective testing. 

In a recent case I worked on in New Orleans Civil District Court the client was hit by a cement truck driver. When the cement truck driver exited the vehicle, he approached the client who smelled marijuana on him. The cement truck driver then pressured the client to let him without the police arriving and the client agreed. There was no police report done but there was testimony from the client which counted as evidence to go to the issue of fact of whether or not the driver was intoxicated because he smelled like marijuana. 

The cement driver’s employer did not follow certain regulations regarding drug testing and this also worked to support the client. The cement truck driver and his employer tried to have the claims of impaired driving by intoxication of marijuana dismissed. The Judge denied this request and allowed the case to proceed to trial on this issue and a settlement was ultimately reached. 

In short, Louisiana uses the “totality of the circumstances test” meaning all factors are considered and no one piece of evidence is determinative. 

Does Intoxication Have to Be the Only Cause of the Injury to Recover?: 

No, intoxication does not have to be the sole cause of the injury or the collision for the victim to recover. However, under Louisiana Civil Code Article 2315.4, the intoxication must be “a cause in fact” of the injury or collision to recover punitive damages in addition to general damages. Punitive damages are an award over and above the amount which would compensate you for your injuries and losses. Punitive damages are awards that are used to deter conduct and send a message to bad actors that their conduct will not be tolerated. 

The best example of this can be seen in a Louisiana appellate case which affirmed an award of punitive damages against an intoxicated driver who was leaning over searching for a CD when he caused a collision. The court discussed, even though the driver was leaning over searching for a CD and even though he was distracted by an object in the vehicle, the intoxication can still be a cause in fact of the collision. 

What Else Do You Need to Establish?: 

Under Louisiana law, you must also establish the intoxicated driver acted with a “wanton and reckless disregard for the rights and safety of others”. No evidence of a specific action on the part of the defendant driver is necessary. In order to prove “wanton and reckless disregard,” the plaintiff is required only to prove a general state of mind and a conscious indifference to consequences. This is relatively easy to establish when an intoxicated driver chooses to get behind the wheel. 

How Experts Can Help: 

Although experts are not required to prove intoxication, it is usually useful to engage a toxicologist who can help establish facts and evidentiary points. Hiring an expert toxicologist at the outset can be useful to have a detailed eye on the testing results if there are any in a case. An expert toxicologist can also be used to assess the level of intoxication which may vary for example if there was time which passed from the time of the collision from the time of a blood draw and/or breathalyzer. 

Why You Should Contact Salter Law For Accidents Caused by Drunk or High Drivers: 

I have handled multiple cases which involve drivers who have been alleged to have been drunk or high behind the wheel and caused an accident. The truth is, in Louisiana, this happens more often than you would think. With the advent of ride services like Uber and Lyft, many intoxicated drivers choose to stay off the road. However, some choose to get behind the wheel. 

When an accident is caused by a drunk driver, it is usually significant. You may have many questions. Questions about what will happen to the drunk driver and questions about what your rights are. Salter Law offers free consultations if you have been hit by a drunk driver or if you suspect you may have been hit by a drunk driver. There is no harm in having an open conversation. If you feel you are the victim of an intoxicated driver in Louisiana, contact Salter Law today for a free consultation.