alcohol and car keys on a table

Injured By a Drunk Driver?

According to the National Highway Traffic Safety Administration, every year 10,000 people die in the United States due to drunk driving.[1]An average of one drunk driving fatality occurs every 51 minutes.[2] In Texas, someone is hurt or killed every 20 minutes because of a drunk driver.[3] Texas leads the nation in deaths caused by a drunk driver and the number of drunk driving incidents is increasing.[4]According to Mothers Against Drunk Driving (MADD), in 2013 there were 25,479 alcohol related crashes, 15,687 alcohol related injuries, and 1,337 drunk driving fatalities in Texas, accounting for a 3.6 percent annual increase.[5] “Drunk driving deaths and injuries are 100 percent preventable, and so is the pain and suffering that comes with them.”[6]

Negligence and Negligence Per Se

A drunk driver who causes an accident is liable for negligence and may be liable for negligence per se in a lawsuit. In the context of driving, “negligence” is defined as some act or omission that a person of ordinary prudence would have or not have done under the same or similar circumstances. “Negligence per se” is (1) an unexcused violation of a statute to (2) a member of the class (i.e., a member of the public) that the statute was designed to protect. Section 49.04 of the Texas Penal Code makes it a crime to operate a motor vehicle in a public place while intoxicated. A first time offense is a Class B misdemeanor. If the defendant had an alcohol concentration of 0.15 or more, it becomes a Class A misdemeanor. Under Section 49.07(a) of the Texas Penal Code, a driver commits intoxication assault by causing serious bodily injury to person by accident or mistake, while operating a motor vehicle in a public place while intoxicated. An offense under this statute is a third degree felony.

Gross Negligence and Exemplary Damages

A person injured by a drunk driver may also file a claim for gross negligence and seek exemplary damages. “Gross negligence” means an act or omission (1) which when viewed objectively from the standpoint of the defendant at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of harm to others, and (2) of which the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. If a jury unanimously believes – by clear and convincing evidence – that a defendant acted with gross negligence, an injured person may be able to recover exemplary damages (often referred to as punitive damages), which are damages intended to punish the wrongdoer and deter future misconduct.

Preserve the Evidence

After a DWI accident, it is critical that all relevant evidence be preserved. This includes photographing the scene, vehicles involved, and any injuries; gathering witness statements from people who saw the accident or witnessed the defendant’s drug or alcohol consumption before the accident; and filing FOIA (Freedom of Information Act) requests with the proper authorities. When filing open records requests, consider obtaining transcripts of 911 calls and any recordings from the officer’s body and dash cameras. If the investigating officer administered Standard Field Sobriety Tests (FSTs), this is fertile ground for evidence in the underlying DWI accident case. If a defendant clearly cannot walk a straight line, for instance, the jury will know the defendant was too intoxicated to operate a motor vehicle on the occasion in question.

Interaction with Law Enforcement

If there is a pending criminal case against the defendant for DWI, the information that can be released is limited by an exception to the open records act. Generally, after the criminal case is concluded the evidence can be obtained from the police department, however, it may be necessary to secure a court order to ensure the evidence does not get destroyed before then.

Successfully pursuing a DWI accident involves interacting with the investigating police agency and the county’s or district attorney’s office. Texas has a Crime Victim Act that allows victims of “criminally injurious conduct,” including victims of DWI accidents, to receive information about the status of the defendant’s criminal prosecution, including court date information and the right to be consulted regarding any potential plea offers. Further, victims may be eligible for benefits up to $50,000 from the Texas Crime Victims’ Compensation Act. Victims can also request that the prosecutor seek an order of restitution from the defendant to make them financially responsible for the harm they caused – medical bills, lost wages, and other economic damages.


[2] Id.



[5] Id.

[6] Faces of Drunk Driving. Save a Life campaign. Texas Department of Transportation.


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