Virginia law permits punitive damages in some claims against intoxicated drivers, in addition to compensatory damages. After a serious crash, you can face significant medical expenses, lost wages, and pain and suffering as a result of your injuries that compensatory damages aim to address. Punitive damages serve a different purpose: punishment and deterrence. The availability of punitive damages depends on the evidence, including the driver’s BAC, knowledge of impairment, conduct, causation, and the legal standard that applies.
At Fishwick & Associates PLC, our Roanoke car accident attorneys represent people injured in drunk driving accidents throughout Virginia. Founder John P. Fishwick Jr. brings decades of courtroom experience to the firm and has represented clients in complex cases across the Commonwealth. Our attorneys examine the circumstances of the crash and the driver’s conduct to determine if punitive damages are appropriate.
This guide explains the difference between compensatory and punitive damages, when Virginia law allows punitive awards, what happens when a driver refuses testing, the state’s damages cap, and how Virginia courts have applied the standard.
Call Fishwick & Associates PLC at (540) 345-5890 to discuss the circumstances of your crash and whether punitive damages may be available under Virginia law.
What Is the Difference Between Compensatory and Punitive Damages?
Compensatory damages reimburse you for economic and non-economic losses caused by an accident. These damages can cover medical expenses, lost income, property damage, and pain and suffering.
Punitive damages serve a different purpose. Rather than compensating you for your injuries, they punish the defendant for serious misconduct and deter similar behavior. When the defendant’s conduct meets Virginia’s legal requirements, a court can award punitive damages in addition to compensatory damages.
When Does Virginia Law Allow Punitive Damages?
Virginia law provides a statutory path for punitive damages in drunk driving injury claims under Va. Code § 8.01-44.5. A plaintiff must prove:
- The driver had a blood alcohol content (BAC) of at least 0.15% when the incident occurred.
- At the time the driver began or continued drinking, they knew or should have known alcohol would impair their ability to operate a vehicle, or while driving, they knew or should have known their ability was impaired.
- The driver’s intoxication was a proximate cause of the victim’s injury or death.
The statute also creates rebuttable presumptions that can help establish these elements. Qualifying breath or blood test certificates can support a presumption that the driver’s BAC at the time of the incident was at least as high as the certified result. Under the statute, a driver with a BAC of 0.15% or higher is also presumed to have known or had reason to know that their ability to operate the motor vehicle was impaired.
Key Takeaway: A BAC of 0.15% or higher does not establish punitive damages on its own. The plaintiff must also prove the required knowledge of impairment at the time of driving and a direct connection between the intoxication and the injury or death.
What if the Driver’s BAC Was Below 0.15%?
A BAC below 0.15% does not automatically prevent a plaintiff from pursuing punitive damages under Virginia common law. Instead, the court looks at the driver’s conduct to determine whether it showed malice or a willful and wanton disregard for the rights of others.
Intoxication alone is not enough to meet this standard, so courts also consider the circumstances surrounding the crash. Relevant factors can include the driver’s level of intoxication, dangerous driving, prior DUI history, earlier collisions or warnings, fleeing the scene, and attempts to conceal what happened. Together, these facts can show whether the driver’s behavior rose beyond ordinary negligence to the level required for punitive damages.
The table below shows how willful and wanton negligence compares with the lower degrees of negligence recognized under Virginia law:
| Type of Negligence | Degree | What It Requires |
|---|---|---|
| Simple negligence | Lowest degree | Failing to use the care a reasonable person would use in the same situation |
| Gross negligence | Higher than simple, lower than willful and wanton | Conduct showing utter indifference and a lack of even slight care for the safety of others |
| Willful and wanton negligence | Highest degree | Acting with conscious disregard for others while knowing that injury would probably result |
What Happens if the Driver Refused a Breath or Blood Test?
Refusing a breath or blood test does not automatically prevent a plaintiff from pursuing punitive damages. Va. Code § 8.01-44.5 provides a separate path when a driver unreasonably refuses a blood alcohol test required under Va. Code § 18.2-268.2.
Under this provision, the driver’s conduct can be considered willful and wanton when the evidence shows that the driver was intoxicated, knew or should have known their ability to drive was impaired, and caused injury or death as a result of the intoxication. The driver’s conduct or condition can serve as evidence of intoxication, while a certified court determination of unreasonable refusal serves as prima facie evidence of the refusal.
Drunk Driving Accident Attorney in Roanoke – Fishwick & Associates PLC
John P. Fishwick Jr., Esq.
John P. Fishwick Jr. is a nationally recognized trial lawyer and Roanoke native with decades of experience representing clients throughout Virginia. From 2015 to 2017, he served as the United States Attorney for the Western District of Virginia after being appointed by President Obama and unanimously confirmed by the U.S. Senate. He earned his J.D. cum laude from Washington and Lee University School of Law in 1983, where he served as a Note and Comment Editor of the Washington and Lee Law Review.
John handles personal injury and wrongful death cases, with cases being referred by other lawyers who trust him with their most challenging work. He has been selected for inclusion in Virginia Super Lawyers and recognized by The Best Lawyers in America. He appears regularly as a legal analyst in national media.
Is There a Cap on Punitive Damages in Virginia?
Yes. Virginia caps punitive damages at $350,000 under Va. Code § 8.01-38.1. This means a plaintiff cannot recover more than $350,000 in punitive damages in a case, even when the defendant’s conduct is especially serious.
The $350,000 limit applies to the total punitive damages awarded against all defendants found liable. If more than one defendant is responsible, the limit does not increase to $350,000 for each defendant. This cap applies only to punitive damages and does not reduce the compensatory damages awarded for losses such as medical expenses, lost income, and pain and suffering.
The jury is not told about the $350,000 cap when deciding the amount of punitive damages. If the jury returns a punitive damages award above that amount, the judge reduces it to the maximum allowed under Virginia law.
How Have Virginia Courts Applied the Punitive Damages Standard?
Virginia court decisions show that BAC alone does not determine whether punitive damages are appropriate. Courts also look at the driver’s actions before, during, and after the crash to determine whether the conduct showed a conscious disregard for the rights and safety of others.
Booth v. Robertson (1988): 0.22% BAC and Wrong-Way Driving
In Booth v. Robertson, 236 Va. 269, 374 S.E.2d 1 (1988), the defendant drove the wrong way down an exit ramp onto Interstate 81 in Roanoke County. He narrowly missed a tractor-trailer whose driver sounded the horn and flashed the vehicle’s lights, but he continued driving and struck the plaintiff head-on. His BAC was 0.22%, and he pleaded guilty to driving under the influence.
The trial court rejected the plaintiff’s punitive damages claim, but the Supreme Court of Virginia reversed the decision. The Court found sufficient evidence that the defendant’s level of intoxication and dangerous driving showed a conscious disregard for the rights of others. Later Virginia cases have cited Booth when evaluating whether similarly serious conduct supports submitting punitive damages to a jury.
Hack v. Nester (1991): Lower BAC Without Sufficient Aggravating Conduct
Hack v. Nester, 241 Va. 499, 404 S.E.2d 42 (1991), reached a different result. The defendant had a BAC between 0.09% and 0.114%, two prior DUI convictions, and had consumed most of a pitcher of beer before the crash. He crossed into the opposite lane at night with his left headlight out and struck and killed another driver. His most recent license suspension had expired, although he had not obtained reinstatement. He also described himself as having a form of night blindness, but there was no medical evidence that his night vision was impaired.
A jury awarded $50,000 in punitive damages, but the Supreme Court of Virginia reversed that portion of the judgment. After comparing the circumstances with Booth, the Court concluded that the evidence did not establish the level of conscious disregard required to support the punitive award.
Huffman v. Love (1993): Prior Collision, Speeding, and 0.32% BAC
In Huffman v. Love, 245 Va. 311, 427 S.E.2d 357 (1993), the defendant had a BAC of 0.32% and was driving 25 mph in a 15-mph zone when he crossed into oncoming traffic and sideswiped the plaintiff’s car. Shortly before that collision, he had rear-ended another vehicle and continued driving. Police stopped him three miles later, when he was so intoxicated that he could not talk, stand, or walk without assistance. He also had two prior DUI convictions and had participated in Virginia’s Alcohol Safety Action Program.
The Supreme Court of Virginia allowed the punitive damages claim to proceed after the trial court had rejected it. The Court emphasized the defendant’s earlier collision, speeding, and extremely high BAC as evidence from which a jury could find a conscious disregard for the safety of others.
Webb v. Rivers (1998): 90 mph, 0.21% BAC, and Severe Impairment
In Webb v. Rivers, 256 Va. 460, 507 S.E.2d 360 (1998), the defendant drove 90 mph in a 25-mph residential area, went through a red light, and collided with the plaintiff. A breath test taken about two hours later showed a BAC of 0.21%. The responding officer described the defendant as being in a stupor and unable to identify where he was or give the correct time.
The trial court rejected the common-law punitive damages claim, but the Supreme Court of Virginia reversed. The combination of the defendant’s high BAC, extreme speeding, and disregard of a traffic signal provided sufficient evidence for a jury to decide whether his conduct showed a conscious disregard for the rights of others.
Coalson v. Canchola (2014): Repeat DUI History and Fleeing the Scene
In Coalson v. Canchola, 287 Va. 242, 754 S.E.2d 525 (2014), the defendant drank from brunch through the afternoon before turning in front of the plaintiff’s vehicle while talking on his cellphone. His BAC was almost twice the legal limit, and he had seven prior DUI convictions. After the crash, he fled the scene and asked his girlfriend to lie about his involvement.
A jury awarded each plaintiff $100,000 in punitive damages. The circuit court later reduced Coalson’s award to $50,000, but the Supreme Court of Virginia reinstated the full $100,000. The Court pointed to his extensive DUI history, prior warnings about drinking and driving, flight from the scene, deception, and attempt to conceal his involvement when evaluating the award.
Key Takeaway: Virginia courts consider the full circumstances of a drunk driving crash rather than BAC alone. A high BAC combined with conduct such as extreme speeding, prior DUI history, previous collisions, fleeing the scene, or concealment can provide stronger support for punitive damages.
How Can a Roanoke Drunk Driving Accident Lawyer Help?
A punitive damages claim requires evidence that goes beyond showing the driver had been drinking. A Roanoke drunk driving accident lawyer can gather and evaluate evidence that helps establish the driver’s level of impairment and conduct, including:
- Certified BAC or breath test results and court findings of unreasonable refusal
- The driver’s prior DUI history and other legally relevant evidence of similar conduct
- Police crash reports and accident reconstruction findings
- Witness statements describing the driver’s speed, behavior, and condition
- Evidence of conduct after the crash, including fleeing the scene or attempting to conceal involvement
An attorney can also determine which legal standard applies to the facts of the case, including the statutory requirements under Va. Code § 8.01-44.5, the unreasonable-refusal provisions, or the common-law standard. From there, the attorney can develop the evidence needed to support the punitive damages claim while accounting for Virginia’s $350,000 cap.
Take the Next Step After a Virginia Drunk Driving Accident
A drunk driving accident can leave you dealing with injuries, medical bills, lost income, and other challenges. When the driver’s conduct meets Virginia’s legal requirements, punitive damages can provide an additional way to hold the driver accountable.
Fishwick & Associates PLC has handled cases involving punitive damages after drunk driving crashes, including a case against an intoxicated box-truck driver that resulted in a $262,500 settlement. John P. Fishwick Jr. and our Virginia car accident lawyers can review the circumstances of your crash and determine what damages you may be entitled to pursue.
Call Fishwick & Associates PLC at (540) 345-5890 or visit our website to request a case evaluation. Our Roanoke office serves clients throughout the surrounding region and across Virginia.
Frequently Asked Questions
What are punitive damages in a Virginia drunk driving case?
Punitive damages are money awarded to punish a drunk driver and to deter similar conduct, rather than to compensate you for your losses. A court may award them in addition to compensatory damages when the driver’s conduct meets Virginia’s willful and wanton standard.
Can I still get punitive damages if the driver refused a breath test?
Yes. Section 8.01-44.5 includes a separate route when a driver unreasonably refuses testing. Intoxication may be proved through the driver’s conduct or condition, and a certified court determination of unreasonable refusal is prima facie evidence that the driver unreasonably refused the test.
Is there a limit on punitive damages in Virginia?
Yes. Va. Code § 8.01-38.1 caps total punitive damages at $350,000 against all liable defendants, and the jury is not told the cap exists. If a jury awards more, the judge reduces the award to the maximum.
Do punitive damages replace my medical bills and lost wages?
No. Punitive damages are separate from compensatory damages. Compensatory damages reimburse your economic and non-economic losses, while punitive damages are added on top to punish and deter.
Is a 0.15% BAC required for punitive damages in Virginia?
No. Virginia does not impose a single BAC threshold for every punitive-damages claim. A BAC of 0.15% or more is one element of the statutory intoxication route under Va. Code § 8.01-44.5, but a plaintiff may still pursue common-law punitive damages when the BAC is lower if the overall conduct is sufficiently willful or wanton. The statutory BAC route also requires proof of knowledge of impairment and proximate causation.
