Our legal team is proud to serve clients in Roanoke and throughout central and southwest Virginia.

Hit by a Drunk Driver in Virginia? You May Be Entitled to Punitive Damages

On Behalf of | Nov 10, 2017 | Personal Injury

After a catastrophic car accident with a drunk driver, you may face significant medical expenses, lost wages, pain and suffering, and uncertainty about your future. However, you could also be entitled to punitive damages, which aim at punishing the drunk driver and discouraging similar misconduct.

Unfortunately, many drunk driving victims don’t demand punitive damages in their injury claims. Below, Fishwick & Associates’ personal injury lawyers explain the essentials of Virginia punitive damage awards.

What Is the Difference Between Compensatory and Punitive Damages?

When we talk about damages, most people immediately think of compensatory damages, which reimburse victims for both their economic and non-economic losses. They can cover a variety of losses, including medical expenses, lost income, pain and suffering, and property damage.

Punitive damages do not compensate you for your losses. Instead, they punish the drunk driver, make an example of them, and deter others from committing similar offenses. Under certain circumstances, a court may award punitive damages in addition to compensatory damages.

Am I Entitled to Punitive Damages?

Under Virginia law, there are two grounds for punitive damages in a drunk driving injury claim. First, your injury lawyer can demand punitive damages under a Virginia statute (Va. Code §8.01-44.5) when:

  • The drunk driver had a blood-alcohol content (BAC) of at least 0.15% when the incident occurred.
  • The drunk driver knew or should have known that they were too impaired to operate a vehicle.
  • Their intoxication was a proximate cause of injury or death to the victim.

Second, if the driver’s BAC was lower, but they engaged in wildly reckless or malicious behavior, punitive damages may be appropriate under Virginia common law. In these cases, the jury must weigh the evidence and determine whether punitive damages are appropriate.

However, you’ll need to prove more than the driver was intoxicated. Typically, the court will weigh the driver’s level of intoxication, their past criminal convictions, and the circumstances surrounding the crash. To win punitive damages, you typically must prove that the drunk driver’s actions were “sufficiently willful or wanton as to show a conscious disregard for the rights of others.”

Because this is a difficult standard, it’s in your best interest to consult with a lawyer before demanding punitive damages.

A Review of Relevant Virginia Supreme Court Decisions

The following cases address the issue on appeal to the Supreme Court of Virginia of whether the plaintiff presented sufficient evidence for the court to submit a claim of punitive damages to the jury. These are some of the leading cases on this issue, but there are several additional leading cases not discussed here. See, e.g., Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180 (2003); Doe v. Isaacs, 265 Va. 531, 579 S.E.2d 174 (2003); Woods v. Mendez, 265 Va. 68, 574 S.E.2d 263 (2003); Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617 (1960).

BOOTH V. ROBERTSON, 236 VA. 269, 374 S.E.2D 1 (1988)

In Booth, the defendant drove the wrong way down an exit ramp on Interstate 81 in Roanoke County. Id. at 270, 374 S.E.2d at 1. The defendant narrowly missed a tractor trailer, which honked its horn with a “constant blast” and flashed its lights, but the defendant kept driving and hit the plaintiff head-on once on the interstate. Id. The defendant’s B.A.C. was 0.22% and he pleaded guilty to driving under the influence. Id. at 271, 374 S.E.2d at 1.

The trial court struck the plaintiff’s claim for punitive damages and the Supreme Court of Virginia reversed. Id. at 270, 273, 374 S.E.2d at 1, 3. The Court stated that the “objective fact that the defendant in this case voluntarily consumed enough intoxicants to produce a reading of 0.22% blood alcohol content, causing him to drive as he did on the night in question, provides sufficient proof of his conscious disregard of the rights of others.” Id. at 273, 374 S.E.2d at 3.

The Court focused on the defendant’s B.A.C. and voluntary intoxication in explaining its ruling that the evidence supported an award of punitive damages for the defendant’s “egregious” behavior. Id. Later cases frequently reference Booth as the quintessential case in which punitive damages were appropriate because the defendant’s behavior embodied egregiousness.

HACK V. NESTER, 241 VA. 299, 404 S.E.2D 42 (1991)

In Hack, the defendant was driving with a B.A.C. between 0.09 and 0.114%. Id. at 506–07, 404 S.E.2d at 45. The evidence showed that the defendant had two prior DUI convictions; he drank at least half a pitcher of beer before the accident; his license was suspended; and he operated the vehicle on the left side of road, with the left headlight out and while he was suffering from night blindness. Id. at 502, 506, 404 S.E.2d at 43, 45. The defendant hit the decedent in the left lane and her administrator brought a wrongful death action against the driver for negligence. Id. at 502, 404 S.E.2d at 43.

The jury awarded $50,000 punitive damages to the plaintiff. Id. at 503, 404 S.E.2d at 43. On appeal, the Supreme Court of Virginia compared these facts to those in Booth and explained that none of the circumstances from Booth were present here. Id. at 506–07, 404 S.E.2d at 45. The Court stated it could not conclude the defendant met the level of conscious disregard of the decedent’s rights to carry the award of punitive damages and it reversed this part of the judgment. Id.

PUENT V. DICKENS, 245 VA. 217, 427 S.E.2D 340 (1993)

In Puent, the defendant had a B.A.C. of 0.24% when he failed to brake and rear-ended the plaintiff’s vehicle at a traffic light. Id. at 218–19, 427 S.E.2d at 341–42. The defendant admitted liability for compensatory damages and pleaded guilty to a charge of reckless driving. Id. The evidence showed the defendant was “going very fast” and that he continued to drink whiskey from the bottle in his vehicle after the accident. Id. at 219, 427 S.E.d2d at 342. The trial court struck the plaintiff’s claim for punitive damages and the Supreme Court of Virginia affirmed. Id. at 218, 220, S.E.2d at 341, 343.

Although the defendant’s B.A.C. was lower in the case of Booth, the Court noted that “other acts of negligence that were direct causes of the collision” must be considered and that the defendant’s conduct here did not “approach that degree of negligence” in Booth, Huffman, or Hack. Id. at 219, 427 S.E.2d at 342.

The Court concluded that a plea of guilty to reckless driving was insufficient alone to sustain punitive damages. Id. at 220, 427 S.E.2d at 343. Even though it called the defendant’s conduct “reprehensible,” the Supreme Court of Virginia did not reverse the trial court’s decision. Id at 220, 427 S.E.2d at 342.

HUFFMAN V. LOVE, 245 VA. 311, 427 S.E.2D 357 (1993)

In Huffman, the defendant was driving with a B.A.C. of 0.32% and speeding (25 mph in a 15-mph zone) when he crossed into oncoming traffic and struck the plaintiff head-on. Id. at 313, 427 S.E.2d at 359. Prior to hitting the plaintiff, the defendant had collided with another vehicle and continued to drive. Id. The defendant did not stop at the time of the accident, and he could not talk, stand, or walk when police pulled him over three miles later. Id. The defendant had two prior convictions for DUI and had completed VASAP. Id.

The trial court struck the plaintiff’s claim for punitive damages. Id. The Supreme Court of Virginia reversed the trial court’s ruling, finding that there was sufficient evidence of the defendant’s “conscious disregard for the safety of others” for the issue of punitive damages to be submitted to a jury. Id. at 314–15, 427 S.E.2d at 360.

The Court focused on three facts:

    • The defendant had a prior collision shortly before the collision with the plaintiff.
    • The defendant was speeding at the time of the collision.
    • The defendant’s B.A.C. was over three times the statutory limit.

Id. at 315, 427 S.E.2d at 360. The Court stated that “[i]n determining the degree of a defendant’s negligence, intoxication is relevant as an aggravating factor, increasing with the level of intoxication.” Id. at 315, 427 S.E.2d at 360–61 (citation omitted).

The Court’s analysis in Huffman is instructive because it expressly points to three facts that the Court considered in reaching its determination.

WEBB V. RIVERS, 256 VA. 460, 507 S.E.2D 360 (1998)

In Webb, the trial court struck the plaintiff’s common law claim and the Supreme Court of Virginia reversed. Id. at 462, 464, 507 S.E.2d at 362, 363. The defendant was traveling 90 mph in a 25-mph residential area with a B.A.C. of 0.21% and ran a stop light, after which he collided with the plaintiff. Id. at 462, 507 S.E.2d at 361. The officer who responded testified that the defendant was drunk to the extent that he “was in a stupor” and was unaware of the time or where he was. Id.

In reversing the trial court’s decision, the Supreme Court of Virginia ruled that the plaintiff “established sufficient facts from which a jury may infer that the defendant’s acts of recklessness or negligence evinced a conscious disregard of the rights of others.” Id. at 463, 507 S.E.2d at 362.These facts are comparable to those in Huffman, including the high B.A.C. level, speeding, and a traffic violation that should have alerted the defendant to his inability to safely drive his vehicle.

COALSON V. CANCHOLA, 287 VA. 242, 754 S.E.2D 525 (2014)

This appeal addressed whether the remittur (reduction) of the punitive damages award was proper, but the opinion is instructive for the Court’s treatment of punitive damages. In Coalson, the defendant began drinking at brunch and continued to drink through the afternoon. Id. at 248, 754 S.E.2d at 527. Notably, the defendant engaged in deceptive and misleading behavior to ensure that a police officer did not know that the defendant was driving under the influence. Id.

The defendant was driving and talking on his cellphone when he approached the left turn into his hotel and turned in front of the plaintiff’s vehicle. Id. The defendant’s B.A.C. was almost twice the legal limit at the time of the accident. Id. at 247–48, 754 S.E.2d at 527. After he hit the plaintiff’s vehicle, the defendant fled the scene. Id. at 248, 754 S.E.2d at 527–28. The defendant was previously convicted of DUI seven times and one time of driving on a suspended license. Id. at 247, 754 S.E.2d at 527. A jury awarded each plaintiff $100,000 in punitive damages. Id. at 246, 754 S.E.2d at 526.

In reversing the trial court’s decision to reduce the punitive damages, the Supreme Court of Virginia recalled the purpose of punitive damages to warn and deter. Id. at 249, 754 S.E.2d at 528.  The Court pointed to the defendant’s seven prior convictions for DUI and his deceptive conduct with the police officer, as well as his fleeing the scene and asking his girlfriend to lie about his involvement, as important factors in the defendant’s “egregious” behavior. Id. at 249, 754 S.E.2d at 529.

The Court noted that this is the kind of conduct punitive damages are supposed to deter because the defendant’s conduct evinced a willful and wanton disregard of the rights of others. Id. at 250–51, 754 S.E.2d at 529–30. The Court concluded that the trial court erred in granting the remittur because the $100,000 award to each plaintiff was not excessive. Id.

Fishwick & Associates: Fighting for Virginia Drunk Driving Victims

If you’ve been injured in a drunk driving accident, you could be eligible for punitive damages. We take on each case with tenacity and determination, and with over 100 years of combined experience practicing law, we have the skill to handle even the most complex cases.

Don’t hesitate to call Fishwick & Associates at 540-643-9772 or fill out our simple online contact form for your case evaluation today.


Va. Code Ann. § 8.01-44.5 (2017).

Woods v. Mendez, 265 Va. 68 (2003).

Cain v. Lee, 290 Va. 129 (2015).

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.