Introduction
In this article we compare auto injury claims against drunk drivers in Oregon.
Some Background
In Oregon, a driver is considered “intoxicated” if they are driving with a blood alcohol concentration of .08%, or under the influence of liquor, marijuana, or an inhalant, or a combination of these substances.
In many countries, a person need only have a .02% blood alcohol concentration to be charged with DUII. Oregon is now moving to lower its blood alcohol cut off to .05%. To put this in perspective, a male between 100 pounds and 240 pounds consuming three drinks will generally accumulate at least a .05% blood alcohol concentration. For women, the averages show two drinks for a female between 100 and 200 pounds in one hour will raise blood alcohol content to at least .05%.
These numbers and the statute relate to the crime of driving under the influence. A person may still be impaired even if they do not meet the legal threshold of the crime of driving while intoxicated. Put another way, this is the minimum to prove criminal responsibility for driving while intoxicated.
How this works in an Oregon injury claim against a drunk driver is different.
The Oregon Injury Claim for Drunk Drivers
If a drunk driver injures you in Oregon, then you have a claim for negligence that the driver’s impairment caused the collision. Driving while intoxicated causes delayed reaction time and loss of coordination. This can lead to failing to keep a lookout, failing to control a car, and following too closely behind another driver. Sober drivers make the same mistakes all the time. So, in this way, there is not much of a difference between the claim against a drunk driver, and the claim against a sober driver.
How Oregon Injury Claims Involving Drunk Drivers Are Different
This has nothing to do with the statutes and case law, but jurors will not tolerate drunk driving. A sober driver that follows to closely or gets distracted may have made an honest mistake. They were careless, but not reckless. But a drunk driver is getting behind the wheel of a several thousand-pound machine that in some criminal cases, is considered a deadly weapon. There is no regard for others on the road. It’s selfish, and nobody wants that person barreling into their lane of travel on a dark wet night. This attitude may be reflected in the jury’s verdict because it may “send a message” about drunk driving to the drunk driver, but also to the community.
Claims Against Drunk Drivers in Oregon
There are legal claims that an injured Oregon driver has only against the drunk driver. One claim involves the damages a drunk driving collision victim can claim, and the other involves a claim against the person or business that provided the alcohol to the drunk driver.
Punishment Damages
First, let’s look at the compensation available to a victim of a drunk driving related collision in Oregon. Like other collision victims, the claim for compensation includes recovery of medical expenses, lost income, and compensation for losing health (pain and suffering). However, because driving while intoxicated is a crime, a drunk driving collision victim can make a claim for another kind of “damages” called “punitive damages.”
Punitive damages are better described as “punishment damages.” Someone who injures another through criminal behavior, or any behavior that “far exceeds the bounds of socially tolerable conduct.” An injured motorist can include a claim for punitive damages against a drunk driver. There are special procedures in making a punitive damages claim, and the legal standard in proving these damages is more challenging. The idea behind punitive damages is to deter others from bad behavior. A jury can also consider the drunk driver’s wealth when considering how much punitive damages it will take to teach the drunk driver a lesson.
Even if you succeed in proving punitive damages, there are challenges in getting paid. Oregon insurers need not cover punitive damages awards. It does not make sense to insure reckless behavior. So, if you prove a punitive damages claim, you must look to the drunk driver’s own assets for payment. That does not happen most of the time.
You also must deal with the State of Oregon. If you somehow get a convicted criminal to pay the punitive damages award, the State of Oregon’s Crime Victim’s Assistance program gets 40% of the award. This money goes to the victims’ assistance fund to help crime victims recover losses where there may be no other claim against the criminal.
The bottom line: Seeking punitive damages against a drunk driver is often an uphill battle.
Other Responsible Parties: The “Dram Shop” Claim
A dram shop is an old fashion name for a tavern that sells alcohol.
Oregon law allows someone injured by a drunk driver to make a claim against the “provider of alcohol” if you can prove by “clear and convincing evidence” that the drunk driver was “visibly intoxicated.” Let’s break this down.
A provider of alcohol can be a business, like a bar, restaurant or even a convenience store. It can also be someone hosting the drunk driver at their home, or a party.
Visibly intoxicated is a lot more than just being intoxicated. You must prove that the provider provided alcohol when the intoxication was “visible.” Think of slurred speech, bloodshot eyes, and staggering. A person can be guilty of driving under the influence and not be “visibly intoxicated.”
You must prove visible intoxication this by “clear and convincing evidence.” This is a step up from the normal standards in proving an injury claim in Oregon. In most cases, you need show only that someone was more likely careless, and that more likely, that bad behavior caused the injuries you are claiming. This is called “preponderance of the evidence.” Think of the scales of justice tipping just ever so slightly in your favor. That is the “more likely” standard.
Clear and convincing evidence means you have to prove visible intoxication was not just probable, but highly probable. To put percentages on it, you are showing a 75% likelihood that the drunk driver was served while visibly intoxicated.
The Notice Requirement for Oregon Injury Claims Against Alcohol Providers
A recent change in the dram shop statute requires that you notify the alcohol provider of your intention to make a dram shop claim. For an injury claim, notice must be provided within six months. On a wrongful death claim, the notice must be provided within one year. This new requirement allows the alcohol provider to investigate and respond to the claim more quickly.
Oregon Injury Claims and the Criminal Case
When we work with clients injured by drunk drivers in Oregon, and the drunk driver is charged criminally, two separate legal cases arise from the same collision.
The local District Attorney pursues the criminal case against the drunk driver. A Victims Assistance advocate with the DA’s office helps our client navigate through the criminal case. Our clients can choose how much they want to be updated on the criminal case. Sometimes, the victims may provide a victim’s impact statement at the criminal sentencing. The District Attorney will consult with victims about sentencing recommendation and plea agreements, but the District Attorney has the last word on how to prosecute the case. This is because the District Attorney represents the State of Oregon, not the drunk driving crime victim.
However, the District Attorney’s efforts can help the drunk driving crime victim with the auto injury claim against the drunk driver, and anyone that may have served the drunk driver. District Attorney file include witness statements, accident scene photographs, blood test results. Where cases go to trial, toxicologists will testify for the State of Oregon, and explain how intoxicated the drunk driver was at the collision scene.
A criminal conviction also prevents the drunk driver from arguing later in the auto injury claim they were not negligent or not impaired.
How We Help
Being injured in an Oregon auto collision is hard enough. Being injured and being crime victim is even more stressful. Besides all the people that contact you after an Oregon auto injury, an injured crime victim will testify at a grand jury proceeding, give witness statements, and maybe testify. We help our client navigate the criminal case, including everything from helping with the victim impact statement to going to court with our client.
Questions
If you have questions about claims against drunk drivers and alcohol providers in Oregon, contact us. We can help you know where you stand.
