Crash with a DUII Driver? What you need to know.
Getting hit by a driver who was under the influence is one of the most frustrating types of crashes to go through. It's bad enough to be injured in a wreck, but it's worse to know the other driver broke the law and put you and others at risk on purpose. The good news is that Oregon law gives DUII crash victims more tools than a typical car crash victim has. Below is an overview of the remedies available to you, and how to get your hands on the police report that will likely be the backbone of your case.
1. A Civil Claim Against the Drunk Driver: Just like any car crash, you can bring a civil claim against the driver who hit you for your harms and losses. This includes medical bills, lost wages, and pain and suffering. But a DUII crash gives you an extra advantage: the driver's citation or conviction under ORS 813.010 (Oregon's "driving under the influence of intoxicants" statute) is powerful evidence of negligence. A driver who was over the legal limit, or otherwise impaired, has effectively admitted, or will have a hard time denying, that they were driving unsafely.
2. Punitive Damages: In an ordinary car crash, punitive damages usually aren't on the table. However, DUII cases are different. Under ORS 31.730, punitive damages are available when a defendant acted with "malice" or showed a "reckless and outrageous indifference to a highly unreasonable risk of harm." Courts and juries have repeatedly found that choosing to drive drunk, especially with a high BAC or a prior DUII, meets that bar. Punitive damages aren't guaranteed, and unfortunately in Oregon requires 70% of any award to go to the state's Criminal Injuries Compensation Account, but they remain a real source of additional recovery in serious cases.
3. A Dram Shop or Social Host Claim: If a bar, restaurant, or licensed server kept serving the driver after they were visibly intoxicated, you may have a separate claim against that business under Oregon's dram shop law, ORS 471.565. The same law can, in some circumstances, extend liability to a social host who kept pouring drinks for a visibly intoxicated guest who later got behind the wheel. These claims are fact-intensive, but they matter most when the drunk driver has little or no insurance. There are very short deadlines to provide notice to the wrongdoers in these types of cases, so you need to contact an Oregon Personal Injury Attorney as soon as possible if you believe there is a dram shop claim.
4. Your Own Uninsured/Underinsured Motorist Coverage: Drunk drivers are disproportionately likely to be uninsured or underinsured. That's exactly what your own UM/UIM coverage is designed for. If you carry auto insurance in Oregon, check your policy. UM/UIM coverage lets you recover from your own insurer when the at-fault driver can't pay for the harm they caused.
5. Personal Injury Protection (PIP) Benefits: Regardless of fault, Oregon auto policies are required to include Personal Injury Protection benefits, which pay medical expenses and a portion of lost wages right away. There is no need to wait for the civil case to resolve.
6. Restitution in the Criminal Case: Because DUII is a crime, the driver will also face a separate criminal case. As the victim, you have a right to restitution for your economic damages, medical bills, lost income, and other out-of-pocket losses, under ORS 137.106. Restitution is ordered as part of the criminal sentence and is separate from, though it can overlap with, a civil recovery. Usually the DUII driver will get an offset for any amounts paid in the criminal matter.
7. Crime Victim Compensation: If you have unpaid medical bills or counseling costs and no other source of recovery, Oregon's Criminal Injuries Compensation Account may be able to help, subject to certain limits and eligibility rules. See ORS 147.035.
8. Wrongful Death Claims: If a loved one was killed by a drunk driver, Oregon's wrongful death statute, ORS 30.020, allows the estate to pursue damages for the family's loss, including the decedent's pain and suffering, lost income, and the survivors' loss of companionship.
9. Don't Wait, Oregon's Statute of Limitations: Most personal injury claims arising from a crash, including DUII crashes, must be filed within two years of the date of the collision under ORS 12.110. Miss that deadline and you generally lose the right to sue, no matter how clear the drunk driver's fault was. Wrongful death claims have their own filing deadlines as well. Don't sit on your rights. There are additional notices that may be required to be sent out, such as Tort Claims Notices or Dram Shop Notices. It is important to meet these stringent deadlines and consult with an Oregon Personal Injury Attorney as soon as possible.
10.-Getting the Police Report: The police report is usually the single most important document in a DUII crash case. The report typically includes the officer's observations of impairment, field sobriety test results, BAC or drug test results, and often a determination of fault. As a crash victim in a case where the driver is alleged to have been DUII, you have a specific statutory right to this information. ORS 135.857 requires that, in any prosecution arising from an automobile collision in which the defendant is alleged to have been driving under the influence, the prosecuting attorney must make available to the victim, upon request, the reports and information that were disclosed to the defendant. In other words, if there's a pending DUII prosecution, you can ask the DA's office for a copy of the police report and related discovery. You can also request the report directly from the law enforcement agency that responded to the crash. Police reports held by a law enforcement agency are generally public records subject to Oregon's public records law, ORS 192.311 to 192.478, and each agency has its own procedure. Most require a written request and a small fee. Note that the DMV crash report you may separately file is not the same as the officer's report, and the DMV itself cannot release its copy of your own report; see ORS 802.220.
Bottom Line: A DUII crash gives you more legal options than a typical accident. You may have a civil claim against the driver, possible punitive damages, a potential dram shop claim, your own UM/UIM and PIP coverage, restitution in the criminal case, and in the worst cases, a wrongful death claim. But those rights come with deadlines and procedural hoops, and the police report is often the key piece of evidence tying it all together. If you or a loved one was hit by a drunk driver in Oregon, don't navigate this alone. Call Ross Law for a free consultation at 503.224.1658.
This post is for general informational purposes only and is not legal advice. Oregon law changes, and the facts of your case matter. Please consult with an attorney to learn how these laws apply to your situation.