Drunk/Drugged Driving

Drunk Driving and Drugged Driving

Driving under the influence of alcohol or drugs can impair a driver’s judgment while operating a motor vehicle. That impaired judgment can cause the driver to seriously injure or kill innocent passengers, other drivers, cyclists or pedestrians.

Driving under the influence is a choice.  A driver who injures or kills a person while operating a vehicle under the influence of alcohol or drugs is subject to criminal charges, as well as a civil lawsuit filed by an injured victim. Drunk/drugged driving victims and their loved ones often feel particularly traumatized knowing that someone acted with such reckless indifference towards their safety – knowing that the accident did not have to happen.

Driving Under The Influence of Alcohol (Drunk Driving)

The Centers for Disease Control (‘CDC”) reports that every day, 29 people in the United States die in motor vehicle crashes that involve an alcohol-impaired driver.  That is one death every 50 minutes. The annual cost of alcohol-related crashes is more than $44 billion.

How Alcohol Affects the Body

Under Florida law, anyone with a blood alcohol concentration (“BAC”) of .08 % or higher is considered legally impaired to drive. For drivers of commercial vehicles, the threshold is .04 %. Alcohol reduces brain function, impairs thinking and reasoning, and limits muscle coordination—all necessary components for operating a vehicle.

According to the National Highway Traffic Safety Administration (“NHTSA”), BAC of .02 % begins to affect a person’s visual function. By the time the level reaches .05 %, the effect is reduced coordination, resulting in difficulty steering and delayed response time to emergency driving situations.

A BAC of 0.08 % makes the driver an even greater risk on the road, due to impaired concentration and perception. Drivers at this level fail to maintain control of their speed, and experience short-term memory loss. How fast a person reaches a level of .08% depends upon a variety of contributing factors, such as gender, weight, and age.

Many drivers feel a sense of false security that once they stop drinking, they are safe to drive. The fact is that the body does not automatically stop processing alcohol—it takes one hour for every beverage to metabolize out of the body.

Driving Under The Influence of Drugs (Drugged Driving)

With more states legalizing marijuana and record numbers of people dying from drug overdoses amid the opioid epidemic, concerns about drug-impaired driving have escalated recently,  Driving under the influence of drugs means driving under the influence of over-the-counter (“OTC”) medications, prescription drugs, marijuana, or illegal drugs.

Over-the-counter medications and drugs affect the brain, and can alter perception, mental processes, attention, balance, coordination, reaction time, and other abilities required for safe driving. Even small amounts of some drugs can have a serious effect on driving ability.

In 2016, 44 percent of drivers in fatal car crashes (with known results) tested positive for drugs, according to the recent report entitled “Drug-Impaired Driving: Marijuana and Opioids Raise Critical Issues for States” by the Governors Highway Safety Association. A recent national survey by the National Highway and Traffic Safety Administration (“NHTSA”) showed 22.5% of nighttime weekend drivers tested positive for illegal, prescription, or OTC drugs that can impair driving.

The Criminal Case and The Civil Claim/Case- Two Separate Cases for the Same Drunk/Drugged Driving Accident

Florida has two separate systems of justice for DUI crashes causing injuries or death: the criminal justice system and the civil justice system. In the criminal justice system, a prosecutor brings criminal charges against the drunk/drugged driver, seeking to punish him/her with penalties such as jail, fines, and driver license revocation. By contrast, the civil justice system involves a lawyer bringing claims or a lawsuit seeking money damages from the drunk/drugged driver– and, perhaps, other culpable third parties—for the injuries and other losses suffered by the DUI victim or his/her family.

At the Law Offices of Andrea McMillan, PA, we believe that those choosing to drive drunk must be held accountable for their choices. We will fight within the civil justice system to get you the money damages you deserve for your injuries and losses. We will also carefully monitor the criminal DUI case and use any information we gather from that case to build and strengthen your civil case for damages.

The Criminal DUI Case

Florida prohibits:

1. 1. Driving; or
   2. Being in actual physical control of a vehicle while:
      1. Having a blood alcohol concentration (“BAC”) of .08% or more; or
      2. Under the influence of alcohol, harmful chemical substances, or illegal controlled substances

Being in actual physical control of a vehicle means the driver is in or on the vehicle, and has the capability to operate it. So, a motorist can be convicted of a DUI even if not actually driving. A person is legally considered “under the influence” when he/she is impaired to the extent of no longer fully possessing his/her normal faculties.

Drunk Driving

1. 1. • Under Florida law:
        • Someone having a blood alcohol concentration of .08% or more is guilty of per se This means that the person can be convicted of driving under the influence, based solely on the fact that he/she had a prohibited amount of drugs or alcohol in their body. In other words, a per se conviction doesn’t require proof that the driver was actually impaired by the substances ingested.
        • The driver of a commercial vehicle with a BAC of .04 % is considered intoxicated beyond the legal limit;

A driver under 21 years of age with a BAC over 0.02% is considered intoxicated beyond the legal limit.

Drugged Driving

There is no “breathalyzer” test that determines a percentage of drugs in a person’s system in the same way that a driver’s blood alcohol concentration (BAC) is determined. Under Florida law, a driver is considered under the influence when, as the result of ingesting drugs, the driver’s “normal faculties are impaired.” One Florida court explained that impairment means “worsening or diminishment in some material respect.” In other words, the drugs must have affected the person’s mental or physical abilities in a significant way.

Harmful chemicals. The substances that qualify as “harmful chemicals” are defined by statute. The list includes nitrous oxide, isopropyl alcohol, and a number of chemicals (such as acetone and toluene) found in chemical solvents. Generally, these chemicals are substances that recreational drug users inhale (or “huff”) to get high.

Controlled substances. Florida’s list of “controlled substances” is extensive and includes:

• Opioids;
• Opiates;
• Stimulants;
• Hallucinogens;
• Benzodiazepines; and
• Cannabinoids.

Marijuana, cocaine, methamphetamine, heroin, and painkillers (like OxyContin and Vicodin) are some of the more common examples of controlled substances.

Drunk/Drugged Driving Criminal Penalties

The penalties for a drug DUI are generally the same as those for an alcohol-related offense. The consequences of a Florida drunk/drugged driving conviction depend upon the circumstances. But generally, the possible penalties are:

• First offense. Generally, a first DUI carries up to six months in jail, $500 to $1,000 in fines, and at least 50 hours of community service. The conviction also results in a license suspension of six months to one year.
• Second offense. Generally, a second DUI within five years of a prior DUI conviction carries ten days to nine months in jail and $1,000 to $2,000 in fines. The conviction also results in a license revocation of at least five years.
• Third offense. Generally, a third DUI within ten years of one of the two prior DUI convictions carries 30 days in jail to five years in prison and $2,000 to $5,000 in fines. The conviction also results in a license revocation of at least ten years.

A DUI involving a minor passenger or a BAC of .15% or greater is considered an “aggravated DUI” and will result in more severe consequences.

What You, as the Victim, Can Do in The Criminal Case Against The Drunk/Drugged Driver

1. Attend the criminal proceedings against the drunk driver;
2. Touch base with the prosecutor;
3. Contact the Victim’s Assistance department in your county and fill out the Victims Impact Statement, which allows crime victims, during the decision-making process on sentencing or parole, to describe to the court or parole board, the impactof the crime. Make sure you give a copy of your Victim Impact Statement to the lawyer handling your civil DUI case;
4. Consider getting involved with Mothers Against Drunk Drivers (“MADD”). See the Resources page of this website).

The Civil DUI Case

You can sue the drunk/drugged driver, and in certain circumstances, a third-party who sold the driver alcohol, seeking compensation for your injuries and other related losses. You will also likely be able to sue the driver for punitive damages, which are designed to punish him/her for the willful and wanton conduct of driving while intoxicated.

Like other kinds of Florida injury cases, civil DUI cases for personal injuries must be filed within four years of the date of the injuries.  If the lawsuit is not filed within those four years, it will be dismissed forever. 

However, in the event the DUI victim died as a result of his/her injuries, then a two-year wrongful death statute of limitations applies. In Florida, the statute of limitations for filing a wrongful death claim is two years from the date of death. In other words, if a loved one passed away on July 1, 2018  because of injuries sustained in a drunk/drugged accident, a wrongful death lawsuit must be filed no later than July 1, 2020.

The Florida “Dram Shop” Law, Which Allows Drunk Driving Victims to Sue Third Parties Who Provided Alcohol to The Drunk Driver

What Is the “Dram Shop Law”?

Florida has a law that allows an injured person to seek compensatory damages from a third party — such as a bar or restaurant— that provided alcohol to someone who causes an alcohol-related accident. These lawsuits, usually filed against business establishments, are known as “dram shop” cases, and are named for a time when alcohol was sold by a unit of measure called a “dram.”

The Florida “Dram Shop Law” is found at Section 788.125, Florida Statutes, which states:

• any person who sells alcohol to an underage individual (under age 21) will be held liable for any accidents or injuries caused by that individual while in their intoxicated state;
• any person who knowingly sells alcohol to an individual with a known drinking problem may become liable for any accidents or injuries caused by that individual while in their intoxicated state.

So, the Florida Dram Shop Law permits a lawsuit against a vendor who sells alcohol to a minor or an alcohol-dependent person, who, while intoxicated,  causes harm to another person, or to himself/herself.

Notably, the Florida Dram Shop Law does not place liability upon a person or establishment that serves alcohol to someone who is, or appears to be, already intoxicated. Therefore, a bartender, liquor store clerk, etc. cannot be held liable just for continuing to serve an over-served individual.

Illustration of How Florida’s Dram Shop Law Operates

Here’s an example of how Florida’s Dram Shop Law operates. Suppose that, on her way home from work one night, Maxine stops at Benny’s Bar for a drink. Benny, the bartender, knows that Maxine has a drinking problem, but he decides to serve Maxine anyway. After a few drinks, Maxine leaves the bar, gets in her car, and drives a few blocks before hitting Peter, a pedestrian.

Peter may file a lawsuit seeking damages from Maxine for causing the accident. Peter may also sue Benny’s Bar for serving alcohol to Maxine, whom the bartender knew to be “habitually addicted” to alcohol.

If Maxine had been under age 21, Peter would also be able to sue Benny’s Bar, even if Donna were not addicted to alcohol. This is because Benny served someone who was under age 21.

Believe it or not, If Donna was herself injured in the accident, Florida law also allows her to sue Benny’s Bar for serving her, because the bartender knew about her addiction. Florida is one of only a few states that allow alcohol-addicted persons to use dram shop law to seek damages directly from the vendors that serve them.

Social Hosts Serving Alcohol Cannot Be Sued for Damages Under Florida’s Dram Shop Law, But May Be Criminally and Civilly Liable Under Other Florida Laws

Social hosts who provide alcohol at a private gathering to a minor or an alcohol-dependent person who then injures a third party or himself/herself, cannot be sued under the Florida Dram Shop Law.  For example, suppose that instead of going to Benny’s Bar after work, Maxine goes to a wine-tasting party hosted by Whitney, a friend from work. Maxine becomes intoxicated, then stumbles into the house to find the bathroom. On the way, Maxine bumps into Peter, and knocks him down the basement steps, injuring him.

Although Peter may sue Maxine for negligently causing his injuries, he cannot  sue Whitney under the Florida Dram Shop Law, because Whitney is a social host, not a vendor. For the same reason, Maxine cannot sue Whitney under the Florida Dram Shop Law, if she was injured on Whitney’s premises.

However, both Maxine and Peter may have a premises liability claim against Whitney, if, for example, the fall occurred because Whitney’s staircase was unreasonably dangerous (independent of any role that alcohol might have played in causing the accident).

Criminal Liability for Providing Alcohol or Drugs To A Minor

Although a social host cannot be held liable under the Florida Dram Shop Law, he/she may face criminal penalties or other sanctions for providing alcohol or drugs to a minor, or even just allowing a minor to use or possess alcohol or drugs.  For instance, Section 322.057, Florida Statutes authorizes the suspension of the driver’s license of a social host who provides alcohol to a minor.

Criminal and Civil Liability Under Florida’s “Open House Parties” Law

Also, the Florida “Open House Parties” Law, found at Section 856.015, Florida Statutes, prohibits anyone having control of a residence from allowing an open house party at the residence where: (1) a minor is possessing or consuming alcohol or drugs; (2) the person knows that fact; and  (3) the person fails to take reasonable steps to prevent it.

Violation of the “Open House Parties Law” will result in up to a first-degree misdemeanor if someone is injured in an auto accident or another incident caused by the drunk minor. In addition to the criminal charge, the person in control of the residence may also be sued for damages in civil court, if someone is injured or killed by the intoxicated minor. For example, if Dave, an  intoxicated minor who was drinking alcohol at someone’s house party, left the party and  crashed into you, then you could sue Dave’s parents if they permitted the house party to take place, knowing that minors would be drinking there.

Damages Recoverable in Civil DUI Cases, Including Florida Dram Shop Cases

Drunk/drugged driving crashes are often violent crashes causing severe injuries. Sadly, these often include:

• Traumatic brain injury;
• Spinal cord injury;
• Internal bleeding;
• Broken bones; and
• Severe neck and back injuries.

Many drunk/drugged driving victims never fully recover, and life never returns to the way it was before the accident.  There is often no end to their physical, emotional, and financial stress.

When a person is seriously injured or killed as a result of someone else’s choice to drink and drive, they or their surviving loved ones are entitled to collect damages in civil court. The justice system allows two types of damages in injury cases: compensatory damages and punitive damages. The Law Offices of Andrea McMillan helps victims of drunk/drugged driving to recover both types of damages.

Compensatory Damages Recoverable in Civil DUI Cases, Including Florida Dram Shop Cases

Compensatory damages are meant to compensate an injured person for the injuries and other losses suffered, or will suffer, as a result of the accident.  There is no special process for seeking those damages, other than requesting them in a claim or lawsuit, and proving them.  Compensatory damages can be demanded from the drunk/drugged driver, as well as the third-party who violated the Dram Shop law. Compensatory damages include:

• Medical bills, including the costs of past and future emergency care, surgery, hospitalization, medication, and rehabilitation;
• Lost wages, including wages and benefits that might reasonably have been earned if the injuries had not caused disability;
• Disfigurement (permanent scarring, etc.);
• Costs of damaged or destroyed property; and
• Pain and suffering.
• Loss of consortium (a victim’s spouse is entitled to seek compensation for the loss of intimacy or damage to the quality of the marriage resulting from the crash)

Punitive Damages Recoverable in Civil DUI Cases, Including Florida Dram Shop Cases

Unlike compensatory damages, punitive damages go beyond compensating the victim and the victim’s family for their losses. Punitive damages are intended to punish a wrongdoer who acts willfully and wantonly, with disregard for others.

Punitive damages tend to be larger sums of money, and will not be covered by the driver’s auto insurance company. Rather, punitive damages are the driver’s personal responsibility. In most cases, drunk/drugged drivers don’t have the money to pay punitive damages. However, sometimes, the driver has substantial personal assets from which punitive damages can be paid to the victim and his/her family.  The Law Offices of Andrea McMillan will seek to recover punitive damages for you.

In a lawsuit, a personal injury lawyer must seek permission from the judge to add a claim for punitive damages, as required by Section 768.72, Florida Statutes.  This is done by filing a motion to add a claim for punitive damages, and outlining for the judge at a hearing, evidence of the drunk/drugged driver’s willful and wanton behavior warranting punitive damages. If the judge grants permission to add the claim, and the case goes to trial, the jury will decide upon awards of both compensatory and punitive damages.

Judges will not permit a punitive damages claim to be added to a typical personal injury case, unless the conduct at issue is sufficiently egregious. However, it is much easier to persuade a judge to allow a punitive damages claim in a drunk/driving case, because of the nature of the misconduct involved, and well-established legal precedent on the issue. In the 1976 case of Ingram v. Pettit, 340 So.2d 922 (Fla. 1976), the Florida Supreme Court noted that driving in an intoxicated condition is an intentional act that creates a known risks to the public. The court went on to state that punishing drunk drivers with punitive damages can serve as a further deterrent for people considering getting behind the wheel when they have had too much to drink.

So, though not automatic, it is easier to convince a judge to allow a punitive damages claim against the drunk/drugged driver in a civil DUI case. If the drunk driver had a blood alcohol concentration of .08 or higher (which means legally intoxicated, as a matter of criminal law), then that is an important bit of evidence for the judge to consider in deciding the punitive damages issue. Other important evidence that will help persuade the judge includes:

• The Defendant driver’s plea of guilty to the DUI charge
• Proof of criminal court conviction for DUI
• Results of the criminal court conviction for DUI
• Results of the Blood Alcohol and/or Breath Alcohol Testing
• Urine Testing Results
• Eyewitness testimony, especially of the arresting officer, as to the driver’s conduct and condition. For example, conduct at a drinking establishment, including the number of drinks consumed; erratic driving, bloodshot eyes, results of a field sobriety test, the odor of alcohol

Although An Insurance Company Has No Duty To Pay Punitive Damages, The Adding Of A Punitive Damages Claim to A Case Creates Serious Problems for The Company, And Provides Settlement Leverage to the DUI Victim

Insurance companies are only potentially liable to pay compensatory damages. They are not obligated to pay punitive damages. However, the adding of a punitive damages claim to a case can create problems for the insurance company, and may motivate the company to settle the case.

If the case goes to trial with the punitive damages claim, the jury will get to hear evidence of the drunk/drugged driver’s egregious behavior. That type of evidence will likely inflame the jury, and has the potential to spur the jury to award the injured person or his/her family compensatory damages, well in excess of the policy limits. Although the insurance company has no duty to pay a punitive damages award, it is obligated to pay compensatory damages. So, for that reason, the insurance company may try to settle the case before trial.

Another reason the insurance company may be more motivated to settle is because it has a duty to protect its insured from liability exposure. The insurer must do everything possible to protect its insured from paying punitive damages. What does that mean? Well, an insurance company likely has a duty to offer a seriously-injured drunk driving victim the insurance policy limits, in exchange for the victim’s full release of all liability claims against the insured drunk/drugged driver. If an insurance company decides to gamble and not offer the policy limits, then it does so at its own risk, and may expose its insured—the drunk/drugged driver– to a huge money damages verdict at trial. The driver could then potentially sue the insurance company for failing to protect him/her. To avoid that risk, the insurance company may offer more money to the DUI victim, in an attempt to settle the entire case.

Contact Andrea McMillan, an Experienced Attorney Who Really Cares, Has Lived Through Catastrophic Injury, and Will Hold The Drunk Driver and All Responsible Third Parties Accountable

Andrea McMillan had a brother who suffered catastrophic injuries in a violent car crash on the road. It was life-changing for him. Andrea cared for him, and lived through the physical and emotional hell his injuries caused him. She knows what it’s like to suffer life-changing injuries that did not have to happen. She understands and will provide the legal and emotional support you need. Call her at (561) 612-5700.