Can I sue a drunk driver who crashed into me in California?

Daniel R. Tamez - Personal Injury - General - Super Lawyers

Answered by: Daniel R. Tamez

Gnau & Tamez Law Group, LLP
San Diego, CA
Phone: 619-446-6736
Fax: 619-684-3500

View Profile

Anyone injured in a California motor vehicle accident can sue the at-fault driver for being injured. However, when the at-fault driver is subsequently convicted of drunk driving at the time of the collision, the victim has additional options to pursue against the drunk driver. In the court, there ends up being two cases related to the crash. First, the criminal action against the drunk driver and second the personal injury action by the victim against the drunk driver for their injuries. We value representing injury clients against drunk because it allows us to give our clients strategic options. For example, we typically gain access to information about the at-fault driver earlier in the representation of our clients, and we can typically evoke a higher level of cooperation from the at-fault driver and his or her representatives. When the at-fault driver admits their liability for the crash in the personal injury action, the court will likely resist admitting the defendant drunk driver's intoxication into evidence. The common mindset is that the at-fault driver's actions are irrelevant if the at-fault driver admits liability for the crash in the personal injury action. At the inception of the trial, this may be true but we are likely to introduce evidence of the defendant's intoxicated driving if the defendant testifies about the accident (because perception is affected by intoxication), or testifies about what someone did or said at the scene of the accident (because memory is affected by intoxication), or testifies about an opinion (because opinions are based on perceptions), or when the defense tries to slip the defendant's opinions, recollections, or perceptions into evidence through the use of a defense expert witness. Cross-examination of a defense expert witness, where one is introducing evidence of the defendant's intoxication at the time of the crash is extremely tricky (especially since there is likely a motion in limine prohibiting the introduction of such evidence). We approach this tricky situation with: 1. foundation of the expert's reliance on the defendant's out-of-court statement, 2. admission by the expert witness that intoxication would undermine their opinion against interest, 3. side bar to argue the expert witness "opened the door," and when granted, 4. introduction of the previously prohibited evidence. Of course, skipping a step or doing the foregoing out of order may result in a costly mistrial being granted against the accident victim. 

Well before trial, there are other strategic considerations related to injury actions against drunk drivers. When we instigate a personal injury lawsuit against a drunk driver, we look to include exemplary damages (punitive damages) against the defendant. These damages are meant to make an example of the defendant's misconduct in order to curb future misconduct. Under California law at the time of this article, simply pleading that the defendant was intoxicated at the time of the collision is not enough to support a claim for exemplary damages. We find other information of misconduct that will support exemplary damages, and we track the San Diego judges who are lenient toward the drunk driver defendant so that we can advise our clients concerning whether or not to challenge a judge in a drunk driving case pursuant to California Code of Civil Procedure §170.6.

We also assist our clients with their participation in the at-fault driver's criminal proceedings, such as with their victim impact statements and their participation at sentencing proceedings. A significant amount of experience handling personal injury actions against drunk drivers can be very beneficial to injury victims because the criminal proceedings can be leveraged against the defendant. However, the application of this leverage must be handled with care, even by attorneys, since threatening criminal or quasi-criminal proceedings in order to advance a civil claim can be construed as extortion and result in proceedings against the victim or his or her attorney. To learn about our high-profile drunk driver actions, please visit us at or follow us at Facebook or Twitter. 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

Other Answers By Daniel R. Tamez

Motor Vehicle Accidents

How much do you get for pain and suffering in a car accident in California?

Unfortunately, there is no rule or law when it comes to evaluating pain and suffering. In fact, in some cases, such as a car accident, two people …

Answered by: Daniel R. Tamez

Personal Injury - Plaintiff

How to hire a personal injury attorney and what to consider when making that decision in California?

There are several factors that I feel are important when considered who to hire for a personal injury claim. That is different from the question …

Answered by: Daniel R. Tamez

Personal Injury - Plaintiff

Can I make an injury claim and sue if I’m injured in a car accident in California?

Yes. If you sustain injuries in a motor vehicle collision in California, then you can make a claim against the at-fault driver’s …

Answered by: Daniel R. Tamez

Other Answers About Personal Injury - Plaintiff

Personal Injury - Plaintiff

How do I sue for a Colorado ski accident?

The most common ski accident is a skier collision. When a skier or snowboarder collides into another, serious injuries often result. Skiing is not a …

Answered by: James H. Chalat

Personal Injury - Plaintiff

How do I sue for my skiing injuries after a Colorado ski accident?

Skiing is a great winter activity that occasionally inflicts a few bumps and bruises. But some trips to the slopes result in serious personal injury …

Answered by: James H. Chalat

Personal Injury - Plaintiff

How do I sue a Colorado ski resort?

The ski industry in Colorado enjoys significant protection against civil claims for ski accidents. Colorado employs an assumption of risk or inherent …

Answered by: Evan P. Banker


If you send a lawyer or law firm email through this service, your email will not create an attorney-client relationship and will not necessarily be treated as privileged or confidential. You should not send sensitive or confidential information via this email service. The lawyer or law firm to whom you are writing may not choose to accept you as a client. Moreover, as the Internet is not necessarily a secure environment it is possible that your email sent via the Internet might be intercepted and read by third parties. Super Lawyers will not retain a copy of this message.

Page Generated: 0.42034888267517 sec