Hit by a drunk driver in California

Two cases come out of one crash, and they are not connected in the way most people expect. The prosecution belongs to the state and is about punishing the driver. The civil claim belongs to you and is about paying for what happened. They run on different clocks, to different standards, with different people in charge. This is general information, not legal advice.

The two cases

• The prosecution. Brought by the district attorney. You are a witness and a victim, not a party. You do not control it, cannot settle it, and cannot drop it. Proof beyond a reasonable doubt.
• Your civil claim. Brought by you against the driver and their insurer. You control it. Proof by a preponderance of the evidence — a considerably lower bar.

Because the civil standard is lower, an acquittal or a dismissal in the criminal case does not end the civil claim. It is a different question, asked with a different threshold.

Do not wait for the prosecution

This is the practical error that does real damage. A criminal case can run for a year or more through continuances and negotiation. The civil deadline does not pause for any of it. If a public entity is also involved — a roadway defect, a government vehicle — the claim deadline there is far shorter still.

Evidence also moves on the criminal timetable, not yours. Vehicles get released, scenes get cleared, and witnesses are interviewed by investigators whose interest is the prosecution rather than your losses.

Deadlines on a California injury claim · claims against a government entity.

What the criminal case gives you

A conviction is powerful evidence. So is the investigation behind it: blood or breath results and the analyst's records, the officer's observations and field-test notes, body-worn and dash camera footage, and any statements the driver made. Much of it is obtainable, and some of it is far better than what a civil investigation could develop on its own.

The criminal file is a resource for the civil claim. It is not a substitute for one.

Punitive damages

Punitive damages are available where it is proven by clear and convincing evidence that the defendant was guilty of oppression, fraud, or malice. Malice is defined to include despicable conduct carried on by the defendant with a wilful and conscious disregard of the rights or safety of others.

Driving while intoxicated is frequently argued to fit that definition, and facts like a very high blood alcohol level, a prior conviction, or fleeing afterwards strengthen it. Two cautions worth stating plainly. The standard is higher than for ordinary negligence, so it is not automatic. And liability insurance generally does not cover punitive damages, which means an award of them is only as good as the driver's own assets.

Sources: Civ. Code, § 3294 (punitive damages — clear and convincing evidence of oppression, fraud, or malice; definitions in subd. (c)).

The bar that served them

People expect the establishment to be responsible. In California it usually is not. The Legislature stated in terms that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication — the consumption is. That reversed the earlier case law and it is why dram-shop claims here are narrow.

The exception that survives in the Civil Code is for a parent, guardian, or other adult who knowingly furnishes alcohol at their residence to a person under 21 whom they knew or should have known was under 21. There, the furnishing may be found to be the proximate cause of resulting injury or death. There is a second, equally narrow route in the Business and Professions Code: a person injured or killed may sue a licensed seller — or someone required to be licensed — who sold, furnished, or gave alcohol to an obviously intoxicated minor, where that furnishing was the proximate cause of the injury or death. Note how much has to line up. The person served must have been a minor, and obviously intoxicated, and the service must have caused the harm. Serving an obviously intoxicated adult, however plainly, does not come within it.

Sources: Civ. Code, § 1714, subds. (b)–(d) (consumption rather than furnishing is the proximate cause; the exception for furnishing to a person under 21). Last amended Stats. 2011, ch. 410 (AB 1407), effective January 1, 2012. Bus. & Prof. Code, § 25602.1 (a cause of action against a licensed seller, or one required to be licensed, who furnishes alcohol to an obviously intoxicated minor where that furnishing is the proximate cause of the injury or death). Last amended Stats. 1986, ch. 289.

Restitution is not your claim

A criminal court can order the driver to pay restitution. It is worth having and it is not a substitute for the civil claim. Restitution is limited in what it covers, is collected from the driver personally rather than from an insurer, and is frequently uncollectable. The civil claim reaches the insurance policy, covers categories restitution does not, and is the route that actually pays for serious injuries.

Pursuing both is normal. Any restitution actually paid is accounted for so there is no double recovery.

If you had been drinking too

It does not necessarily end the claim — California reduces a recovery by the claimant's share of fault rather than barring it. But there is a separate statutory bar that removes non-economic damages entirely from a person convicted of driving under the influence in the crash, and it is harsh. That, and the uninsured-owner version of the same bar, are covered at why firms say no.

Common questions

Do I have to wait for the criminal case to finish?

No, and waiting can cost you. The civil deadline runs on its own clock regardless of what the prosecution is doing. A criminal case can take a long time, and the civil claim does not pause for it. What a conviction does is make proof easier — it does not extend your time.

Can I recover punitive damages from a drunk driver?

Sometimes. Punitive damages require proof by clear and convincing evidence of oppression, fraud, or malice, and malice includes despicable conduct carried on with a wilful and conscious disregard of the rights or safety of others (Civ. Code, § 3294). Driving while intoxicated is often argued to meet that. It is a higher standard than ordinary negligence and is decided on the facts.

Can I sue the bar that kept serving them?

Usually not. California law states that the consumption of alcohol, not the furnishing of it, is the proximate cause of injuries resulting from intoxication. The main exception is an adult who knowingly furnishes alcohol to someone under 21 they knew or should have known was underage.

The judge ordered restitution. Is that my compensation?

It is not the same thing. Criminal restitution is ordered in the prosecution and is usually limited in scope and hard to collect. A civil claim reaches insurance and covers categories restitution does not. Getting restitution does not end the civil claim, though any payment is accounted for.