Quick Answer: What Makes Virginia Drunk Driving Cases Different?
If you were injured by a drunk driver in Virginia, your case is fundamentally different from a typical car accident claim. Here’s what sets it apart:
- You can pursue punitive damages on top of compensatory damages (medical bills, lost wages, pain and suffering)
- Virginia Code § 8.01-44.5 allows additional punishment against drunk drivers—up to $350,000 in punitive damages
- You may also have a common law claim for punitive damages
- You have powerful evidence on your side: BAC test results, field sobriety tests, criminal conviction records
- Insurance companies can’t easily deny liability when their insured was driving drunk
- A refusal to submit to a breathalyzer test actually helps your civil case under Va. Code § 18.2-268.3
Bottom line: Drunk driving cases carry higher settlement values and jury verdicts because Virginia law recognizes the willful, reckless nature of driving while intoxicated.
What Are Statutory Punitive Damages?
Imagine this: You’re stopped at a red light in Charlottesville when a drunk driver slams into you at 50 mph. You suffer a traumatic brain injury. Your medical bills exceed $200,000. You can’t work for six months.
In a regular car accident, you’d recover compensatory damages—your economic losses and pain and suffering.
But when the at-fault driver was drunk, Virginia law allows you to punish them financially through punitive damages.
Virginia law gives you two avenues to pursue punitive damages. The first is statutory punitive damages under Va. Code § 8.01-44.5. The second is for common law punitive damages.
Va. Code § 8.01-44.5 Explained
Pursuant to Virginia Code § 8.01-44.5, punitive damages are available in drunk driving cases when a defendant driver has, among other things, a .15 blood alcohol content. Evidence of that BAC proves that the defendant was acting with willful and wanton negligence.
Here’s what that means in plain English:
You must first prove actual damages. This includes:
- Medical expenses (past and future)
- Lost income and diminished earning capacity
- Pain and suffering
- Permanent impairment or disfigurement
Then you can pursue punitive damages if:
- The defendant’s BAC was .15% or higher, OR
- The defendant refused to submit to a blood alcohol test.
The cap: Punitive damages are capped at $350,000 pursuant to Va. Code § 8.01-38.1—but this is in addition to your compensatory damages.
What “Willful or Wanton” Means
Virginia courts define “willful or wanton” as conduct showing:
- Conscious disregard for the safety of others
- Recklessness beyond mere negligence
- Intentional exposure of others to danger
Examples that meet this standard:
- Driving drunk with a BAC of .15% or higher
- Causing a crash while fleeing from police
- Driving drunk with children in the vehicle
- Prior DUI convictions on the driver’s record
In Huffman v. Love, 245 Va. 311 (1993), the Virginia Supreme Court clarified that punitive damages are meant to punish the defendant and deter others from similar conduct. Drunk driving can meet this standard because it’s a deliberate choice to endanger everyone on the road.
For a legal consultation with a personal injury lawyer, call (434) 817-3100
Common Law Punitive Damages: An Alternative Path to Recovery
Here’s something you need to make sure your attorney understands: Virginia Code § 8.01-44.5 isn’t your only option for punitive damages in drunk driving cases.
You can also pursue common law punitive damages—and in some situations, this route gives you strategic advantages.
Understanding Virginia’s Two Paths to Punitive Damages
When a drunk driver injures you, Virginia law gives you two distinct legal theories for seeking punitive damages:
Path 1: Statutory Punitive Damages (Va. Code § 8.01-44.5)
- Requires proof of actual damages first
- Caps punitive damages at $350,000
- Requires showing “willful or wanton” conduct OR BAC of .15% or higher
- Created specifically for drunk driving cases
Path 2: Common Law Punitive Damages
- Based on decades of Virginia case law like Huffman v. Love, 245 Va 311
- Requires showing “willful and wanton negligence” or “conscious disregard”
- Available for any egregious conduct—not just drunk driving
Why Common Law Punitive Damages Matter
You might be thinking: “Why would I pursue common law punitive damages when § 8.01-44.5 already gives me up to $350,000?”
You Can’t Prove BAC of .15% or Higher
Let’s say the drunk driver’s BAC was .12%—clearly over the legal limit, but below the .15% threshold in § 8.01-44.5. To get statutory punitive damages, you’d need to prove “willful or wanton” conduct through other evidence.
Common law gives you flexibility:
- .12% BAC + excessive speeding = willful disregard
- .12% BAC + texting while driving = conscious indifference
- .12% BAC + prior DUI conviction = pattern of reckless behavior
Common law doesn’t require a specific BAC threshold—just proof that the defendant consciously disregarded the risk of harm.
How Virginia Courts Analyze Common Law Punitive Damages
Again, looking at cases like Huffman v. Love, punitive damages can be available in drunk driving cases even when the defendant driver does not have a .15 blood alcohol content.
The test: Punitive damages are available when the defendant’s conduct shows:
- Actual malice (intent to harm), OR
- Willful and wanton negligence (conscious disregard for others’ safety), OR
- Such recklessness as to evince a conscious disregard for the rights and safety of others
In drunk driving cases, we typically seek to prove conscious disregard:
- The defendant chose to drink
- The defendant knew alcohol impairs driving ability
- The defendant chose to drive anyway
- The defendant consciously disregarded the risk of killing someone
This can be textbook “conscious disregard.”
Can You Pursue Both Statutory AND Common Law Punitive Damages?
Yes. You can pursue both theories, but you are still limited to one recovery of $350,000.
Choose Va. Code § 8.01-44.5 when:
- You want a clearer legal standard (easier to explain to a jury)
- The defendant’s BAC was .15% or higher (automatic qualification)
- The defendant wrongfully refused to submit to a blood alcohol content test
Choose common law punitive damages when:
- The defendant did not have the required .15 BAC
- Aggravating factors exist beyond intoxication (fleeing police, prior DUIs)
Wrongful Refusal to Submit to BAC Test: How It Helps Your Case
Here’s something most people don’t know: If the drunk driver refused to take a breathalyzer test, that refusal can form the basis of punitive damages.
Virginia Code § 18.2-268.3
Under Virginia’s implied consent law, every driver on Virginia roads has already consented to a breath or blood test if arrested for DUI. If they refuse, they face:
- Automatic license suspension (criminal penalty)
- Presumption of guilt in civil court under Va. Code § 8.01-44.5
How This Works in Practice
Let’s say the drunk driver who hit you refused the breathalyzer. The officer noted they:
- Smelled of alcohol
- Had slurred speech
- Failed field sobriety tests
- Had open containers in the vehicle
The refusal itself creates a claim for punitive damages under Va. Code § 8.01-44.5. In civil court (not criminal), Virginia allows the claim to proceed. The law will not allow a drunk driver to escape punitive damages by refusing to submit to a test because they knew they were drunk.
Key takeaway: Don’t worry if the drunk driver refused the breathalyzer. That refusal actually strengthens your case and even justifies punitive damages.
How Punitive Damages Work in Virginia Drunk Driving Cases
You might be wondering: “If I’m already getting compensated for my medical bills and pain, what’s the point of punitive damages?”
Punitive damages serve two purposes:
- Punishment
Compensatory damages make you whole. Punitive damages punish the drunk driver for choosing to endanger others. It’s a financial penalty meant to hurt.
- Deterrence
When a jury awards $350,000 in punitive damages on top of $500,000 in compensatory damages, it sends a message: Driving drunk will cost you everything.
Insurance Complications in Drunk Driving Cases
You secured a $750,000 verdict—but the drunk driver only has $100,000 in liability coverage. What happens next?
Underinsured Motorist Coverage (UIM)
This is where your own auto insurance policy becomes critical.
How UIM works:
- You exhaust the drunk driver’s liability policy ($100,000)
- You then file a UIM claim with your own insurance company for the remaining $650,000
- Your policy covers the gap (up to your UIM limits)
Key point: If you have $500,000 in UIM coverage, your insurance company will pay $500,000—meaning you recover $600,000 total instead of just $100,000.
Why UIM matters in drunk driving cases:
- Drunk drivers often have minimal insurance (state minimum is $25,000/$50,000)
- Punitive damages awards can exceed policy limits
- Your UIM carrier cannot refuse payment just because the defendant was drunk
Bad Faith Claims
If your own insurance company unreasonably denies or delays your UIM claim, you may have a bad faith claim against them pursuant to Va. Code § 8.01-66.1(D).
Examples of bad faith:
- Refusing to negotiate after you’ve obtained a judgment
- Demanding you settle for less than policy limits without justification
- Failing to investigate your claim properly
Click to contact personal injury lawyers today
Evidence That Wins Drunk Driving Cases
What separates a strong drunk driving case from a weak one? Evidence.
Here’s what we gather immediately after a drunk driving crash:
1. Police Reports and Criminal Records
- Arrest report (BAC results, field sobriety test performance)
- Criminal court conviction (guilty plea or trial verdict)
- Body camera footage (showing driver’s condition at the scene)
- Dash camera footage (showing erratic driving before the crash)
Why this matters: A criminal DUI conviction is admissible in your civil case and creates a presumption of negligence.
2. Toxicology Reports
- Blood alcohol content (BAC) at the time of arrest
- Presence of drugs (marijuana, opioids, benzodiazepines)
- Hospital blood draws (if the driver was also injured)
Pro tip: BAC rises for 30-90 minutes after the last drink. If the crash happened at 11:00 PM and the driver’s BAC was .12% at 11:30 PM during testing, their BAC at the time of the crash was likely .10% or lower—but still over the legal limit.
3. Bar and Restaurant Records
- Credit card receipts (showing time and amount of purchases)
- Surveillance footage (showing visible intoxication)
- Witness interviews (bartenders, servers, other patrons)
4. Cell Phone Records
- Subpoenaed text messages (showing the driver was texting while drunk)
- Call logs (showing distraction)
- Social media posts (posting photos of drinks at the bar before driving)
5. Event Data Recorder (EDR/”Black Box”)
Many modern vehicles have EDRs that record:
- Speed at the time of impact
- Brake application (whether the driver even tried to stop)
- Steering input
- Seatbelt usage
This data proves: The drunk driver wasn’t just impaired—they were speeding, not braking, and showing zero reaction time.
What to Do Immediately After a Drunk Driving Crash
If you’ve been injured by a drunk driver, here’s your action plan:
Step 1: Call 911 and Report Suspected Intoxication
Tell the dispatcher: “The other driver appears intoxicated—slurred speech, smell of alcohol, erratic driving.” This ensures police will investigate for DUI.
Step 2: Document Everything at the Scene
- Take photos of the other driver (showing physical appearance)
- Record video if they’re stumbling or slurring
- Get witness contact information
- Photograph open containers in their vehicle
Step 3: Get Medical Attention Immediately
Even if you feel “fine,” adrenaline masks pain. Get examined within 24 hours to document injuries. Delayed treatment hurts your case.
Step 4: Preserve Evidence
- Request a copy of the police report (includes BAC results)
- Do not repair your vehicle until it’s been photographed and inspected
- Save all medical records and bills
- Keep a journal of pain, limitations, and emotional distress
Step 5: Contact a Virginia Drunk Driving Accident Lawyer
Insurance companies know drunk driving cases are worth more—which means they’ll fight harder to minimize your payout.
Do not:
- Give a recorded statement to the insurance company
- Accept an early settlement offer
- Sign any releases
Do:
- Consult with an attorney experienced in drunk driving cases
- Understand your rights to punitive damages
- Explore UIM coverage if the drunk driver is underinsured
Complete a Case Evaluation form now
Frequently Asked Questions
Can I sue if the drunk driver wasn’t convicted criminally?
Yes. The burden of proof is lower in civil court (“preponderance of the evidence” = 51% likelihood) than criminal court (“beyond a reasonable doubt” = 99% certainty). Even if the drunk driver pleaded to a lesser charge like reckless driving, you can still prove they were intoxicated using:
- Officer testimony
- Blood alcohol test results
- Witness statements
- Circumstantial evidence
- Wrongful refusal to submit to blood alcohol test
How long do I have to file a drunk driving accident lawsuit in Virginia?
Two years from the date of the crash under Virginia’s statute of limitations (Va. Code § 8.01-243). Do not wait. Evidence disappears:
- Surveillance footage is deleted after 30-90 days
- Witnesses’ memories fade
- Medical records become harder to obtain
What if the drunk driver fled the scene (hit-and-run)?
If the drunk driver fled, you may still recover through:
- Uninsured motorist coverage (your own policy covers hit-and-runs)
- Criminal Injuries Compensation Fund (for victims of violent crimes, including felony hit-and-runs)
Can I recover punitive damages if the drunk driver was barely over the legal limit (.08%)?
It depends. A BAC of .08% alone may not justify punitive damages. But if combined with:
- Excessive speeding
- Texting while driving
- Prior DUI convictions
- Causing a catastrophic injury
…then you may still meet the actual malice or “willful or wanton” standard.
Generally, BACs of .15% or higher create a strong presumption of willful conduct under Va. Code § 8.01-44.5.
What if I was partially at fault for the accident?
Virginia follows contributory negligence, which means the defense will argue that if you were even 1% at fault, you cannot recover damages.
However: If the drunk driver’s intoxication was the sole proximate cause of the crash, your minor fault (like slightly speeding) should not bar recovery. Courts recognize that drunk driving is willful and wanton conduct, and contributory negligence will not bar recovery when the defendant acts with willful and wanton conduct.
Example: You were going 5 mph over the speed limit when the drunk driver ran a red light. A jury may find the drunk driver 100% at fault because the crash would have happened regardless of your speed.
Will I have to go to court?
Most drunk driving cases settle before trial because:
- The evidence is overwhelming
- Insurance companies know juries hate drunk drivers
- Punitive damages exposure creates settlement pressure
However: If the insurance company refuses to offer fair compensation, we’re prepared to take your case to trial. Juries in Virginia are favorable to awarding punitive damages in drunk driving cases.
Can family members sue if their loved one was killed by a drunk driver?
Yes. Virginia allows wrongful death claims under Va. Code § 8.01-50. Family members can recover:
- Funeral and burial expenses
- Lost income and financial support
- Loss of companionship, guidance, and care
- Punitive damages (up to $350,000)
Wrongful death claims must be filed within two years of the date of death under Va. Code § 8.01-244.
Why Choose MartinWren, P.C. for Your Virginia Drunk Driving Case?
When you’re up against a drunk driver’s insurance company, you need an attorney who understands:
- How to maximize punitive damages under Va. Code § 8.01-44.5
- How to prove intoxication even when the driver refused testing
- How to take a case to trial to receive maximum compensation
- How to navigate UIM claims when the drunk driver is underinsured
Our team is experienced handling all catastrophic injury cases, including drunk driving accidents. When insurance companies see his name, they know we mean business.
Free Case Review: Let’s Discuss Your Drunk Driving Accident Claim
If you were injured by a drunk driver in Virginia, don’t let the insurance company minimize your case.
Call us today for a free consultation:
We handle cases throughout Virginia, including:
- Charlottesville drunk driving accidents (Route 29, UVA Corner, Downtown Mall area)
- Richmond drunk driving accidents (I-95, I-64, Broad Street corridor)
- Northern Virginia drunk driving accidents (I-66, Route 28, Dulles Toll Road)
- Roanoke drunk driving accidents (I-81, Route 220, Route 460)
You pay nothing unless we win your case. Let’s hold drunk drivers accountable and secure the compensation you deserve.
Local Attorney Pages:
Charlottesville Drunk Driving Accident Lawyer
Last Updated: January 2026
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every drunk driving case is unique. Consult with a qualified Virginia personal injury attorney to discuss your specific situation.
Call (434) 817-3100 or complete a Case Evaluation form
