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Can a Drunk Victim Still Recover Damages?


In personal injury cases, especially those that involve car crashes, there is usually some inquiry into whether the negligent driver was intoxicated at the time of the accident. Drunk driving is obviously clear evidence of negligence (and worse, when it comes to criminal penalties).

But what about the victim? If a victim was intoxicated at the time of an accident, can he or she still recover damages?

The Law of Intoxicated Plaintiffs

So long as the victim (the plaintiff suing for damages) is not completely responsible for causing the accident, there is no law that says that a victim cannot recover damages even if he or she was under the influence of alcohol.

In a normal personal injury case (not involving allegations of alcohol usage) the jury listens to the evidence, and can find the victim partially responsible for causing the accident. The jury can do the same thing when alcohol is involved. However, before the jury can even learn that the victim was under the influence of alcohol, two things must be proven by the defendant who is alleging the victim was drunk:

  1. That the victim was impaired because he or she was intoxicated, or
  2. That the victim’s blood alcohol level was .08 or above

If both of these are proven, the jury must determine how much at fault the victim was for the accident, and thus for causing his or her own injuries. If the jury finds:

  1. That the victim was more than 50% responsible for causing the accident, and
  2. That the victim caused the accident because of the intoxication

The victim will recover nothing. This is in contrast to cases that don’t involve alcohol. In those cases, even if a victim is 80% responsible for causing the accident, he or she can still recover the remaining 20% of damages. But that is not the case when the victim had an elevated BAL. If the requirements above are met, a finding that the victim was 80% responsible would result in a $0 verdict.

Tough for Defendants to Prove

This may seem harsh, but the Defendant still must show that the reason why the Plaintiff caused the accident was because of the intoxication.

For example, if someone were completely drunk, but was injured when something fell from the ceiling onto his or her head, it is unlikely that the victim being drunk played any role in the accident. If the victim fell on a substance on the floor that he or she could never have seen, sober or not, the fact the victim was under the influence would be irrelevant.

In many cases, such as with falls or accidents that don’t involve motor vehicles, there may not even be any admissible evidence as to a victim’s BAL.

The bottom line is do not assume that you are at fault for an accident, or that you are not entitled to recover for injuries, just because you may have been drinking at the time of an accident.

If you are injured in an accident, be prepared to counter whatever defenses the insurance company or defendant may throw at you. Contact the Miami personal injury attorneys at Velasquez & Associates P.A. today with any questions you may have.



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