You should know not to drive drunk, but do you know what to do if you’re injured by a drunk driver?
There’s never an excuse (or reason) for drunk driving. Ever.
It only takes 1 mistake to change — or end — your life or someone else’s.
Drunk driving is operating a vehicle with a blood alcohol concentration (BAC) of 0.08% or higher. The Centers for Disease Control and Prevention (CDC) estimates that 1 in 3 U.S. traffic fatalities involves a drunk driver. That’s about the same as in New York, where statistics show that 30% of traffic fatalities are the result of drinking and driving.
The National Highway Traffic Safety Administration (NHTSA) reported that New York had 943 total traffic fatalities in 2018. Over 300 of those were in alcohol-related crashes. Among survivors in fatal crashes, 57 (8 percent) reported BAC results.
Source: National Highway Traffic Safety Administration (NHTSA).
How alcohol affects driving
Alcohol affects both the central nervous system and the brain. Here’s how:
- Alcohol is absorbed through the walls of the stomach and small intestine. It passes into the bloodstream and is metabolized by the liver.
- BAC (alcohol level) is measured by the weight of alcohol in a certain volume of blood.
Even very small amounts of alcohol can affect how you drive. The NHTSA describes these effects on driving at BAC amounts below and above the legal limit:
| BAC | General effects | Effects on driving |
|---|---|---|
| 0.02 |
|
|
| 0.05 |
|
|
| Legal limit | ||
| 0.08 |
|
|
| 0.10 |
|
|
| 0.15 |
|
|
What’s your BAC?
The only way to know your BAC is to use a blood test or Breathalyzer. But there are several factors that affect your BAC, and each factor is individual to your body and its condition at a particular time. You can’t assume that because you and a friend had the same amount to drink that you have the same BAC — your bodies will metabolize alcohol differently.
By the same token, you should never assume that if you drink the same amount today as you did yesterday you’ll have the same BAC. There are many factors that can change how your body is affected by alcohol from one day to another.
There are 6 factors that affect your BAC:
- Amount of alcohol consumed
- Amount of food in your body prior to drinking alcohol
- How quickly the alcohol was consumed
- Your body weight
- Your biological gender
- Medications and medical conditions
You can’t “sober up” more quickly than your body allows. Your body processes approximately 1 drink per hour, and you really can’t hasten the process — you just have to wait until your body metabolizes the alcohol and you become sober.
New York drunk driving laws and penalties
There are several offenses and criminal charges for drinking and driving in New York:
- Driving While Intoxicated (DWI) is 0.08 BAC or higher or other evidence of intoxication. If you’re driving a commercial vehicle, the BAC limit is 0.04 or other evidence of intoxication.
- Aggravated DWI is 0.18 BAC or higher.
- Driving While Ability Impaired by Alcohol (DWAI/Alcohol) is more than 0.05 but less than 0.07 BAC or other evidence of impairment.
- Driving While Ability Impaired by a Single Drug other than Alcohol (DWAI/Drug)
- Driving While Ability Impaired by a Combined Influence of Drugs or Alcohol (DWAI/Combination)
- Chemical test refusal is when a driver refuses a Breathalyzer or blood or urine test.
- Zero tolerance law is in effect for a driver who is less than 21 years old and drives with 0.02 to 0.07 BAC.
The New York State DMV provides this summary of penalties for drunk driving violations:
| Violation | Mandatory fine | Maximum jail sentence | Mandatory driver license action |
|---|---|---|---|
| Aggravated Driving While Intoxicated (AGG DWI) | $1,000 - $2,500 | 1 year | Revoked for at least 1 year |
| Second AGG DWI in 10 years (E felony) | $1,000 - $5,000 | 4 years | Revoked for at least 18 months |
| Third AGG DWI in 10 years (D felony) | $2,000 - $10,000 | 7 years | Revoked for at least 18 months |
| Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug) | $500 - $1,000 | 1 year | Revoked for at least 6 months |
| Second DWI or DWAI-Drug violation in 10 years (E felony) | $1,000 - $5,000 | 4 years | Revoked for at least 1 year |
| Third DWI or DWAI-Drug violation in 10 years (D felony) | $2,000 - $10,000 | 7 years | Revoked for at least 1 year |
| Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination) | $500 - $1,000 | 1 year | Revoked for at least 6 months |
| Second DWAI-Combination in 10 years (E felony) | $1,000 - $5,000 | 4 years | Revoked for at least 1 year |
| Third DWAI-Combination in 10 years (D felony) | $2,000 - $10,000 | 7 years | Revoked for at least 1 year |
| Driving While Ability Impaired by Alcohol (DWAI) | $300 - $500 | 15 days | Suspended for 90 days |
| Second DWAI violation in 5 years | $500 - $750 | 30 days | Revoked for at least 6 months |
| Third or subsequent DWAI within 10 years (Misdemeanor) | $750 - $1,500 | 180 days | Revoked for at least 6 months |
| Zero Tolerance Law | $125 civil penalty and $100 fee to terminate suspension | None | Suspended for 6 months |
| Second Zero Tolerance Law | $125 civil penalty and $100 re-application fee | None | Revoked for 1 year or until age 21 |
| Chemical Test Refusal | $500 civil penalty ($550 for commercial drivers) | None | Revoked for at least 1 year, 18 months for commercial drivers. |
| Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal | $750 civil penalty | None | Revoked for at least 18 months to 1 year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers. |
| Chemical Test Refusal - Zero Tolerance Law | $300 civil penalty and $100 re-application fee | None | Revoked for at least 1 year. |
| Chemical Test Refusal - Second or subsequent Zero Tolerance Law | $750 civil penalty and $100 re-application fee | None | Revoked for at least 1 year. |
| Driving Under the Influence (out of state) | N/A | N/A | Revoked for at least 90 days. If less than 21 years of age, revoked at least 1 year. |
| Driving Under the Influence (out of state) with any previous alcohol-drug violation | N/A | N/A | Revoked for at least 90 days (longer term with certain prior offenses). If less than 21 years of age, revoked at least 1 year or until age 21 (longest term). |
Additional penalties might be assessed for multiple violations or other aggravating circumstances.
How to prevent drunk driving
Thanks to nationwide and local campaigns to raise awareness about drunk driving, numbers of alcohol-related fatalities are slowly declining. However, you should still be wary of your own alcohol consumption and that of your family or friends.
Be a responsible driver by following these 4 tips:
- Know before you go how you’re going to get home. Select a designated driver before you head out so that the person is aware of their responsibility and knows they need to get everyone home safely. The designated driver should not drink any alcohol.
- Take the keys. If you see a friend who has been drinking and is about to drive, don’t let them get behind the wheel. Take their keys and help find them another way home. Don’t do this with a stranger, though — that can be dangerous. If someone leaves a party or establishment visibly drunk and is about to drive, call the police and give as much detail as you can about the car and where it headed. Don’t try to apprehend a stranger.
- Call a ride. If you’ve been drinking at all, don’t drive. Instead, call a sober friend or use a taxi or rideshare service like Uber or Lyft.
- Watch your guests. If you’re the host, don’t let your guests leave unless they’re sober or have another ride home.
How to spot a drunk driver
Your best defense to becoming a victim of a drunk driving injury is to know the signs of a drunk driver. Mothers Against Drunk Driving (MADD) offers these signs of drunk driving:
- Quick acceleration or deceleration
- Tailgating
- Weaving or drifting in and out of lanes, swerving
- Driving on the shoulder, median, or in another area that’s not intended for cars
- Near misses — almost hitting an object or other vehicle
- Erratic braking (stopping for no reason)
- Signaling that’s inconsistent with actions (or no signaling)
- Slow response to traffic signals or other things on the road
- Driving at night without headlights
- Driving too slowly for the speed limit
- Abrupt or illegal turns or other maneuvers
- Driving on the wrong side of the road
What to do if you were injured by a drunk driver
If you were in a collision with a drunk driver, you should follow the same steps as you would in any car accident with respect to gathering information and evidence and getting a medical evaluation. New York is a no-fault insurance state, which means your first claim should be to your own insurance for any medical treatment you require as a result of the accident.
If you suspect that the driver is drunk, call 911. A police report is important after any accident, but especially if the driver is drunk. If the driver flees the scene, try to get as much information as possible. If you can quickly write down or photograph the car’s license plate, make and model, and color, that will be helpful to the police in finding the driver.
If the driver remains at the scene, let the police handle them. You don’t want to put your own safety at risk if the person is violent or behaving erratically.
Who’s liable in a personal injury lawsuit against a drunk driver?
Under some circumstances, New York will allow a business owner to be held liable for overserving a driver. New York’s Dram Shop Act provides a cause of action to someone who was injured as a result of a drunk person who drank alcohol that was unlawfully sold or provided. A business is prohibited from selling alcohol to a person who is “actually or apparently” under the age of 21 and to a person who is “visibly intoxicated.”
To make a claim against a business that provided alcohol to someone who then caused an accident, you need to prove that:
- The person was intoxicated,
- The business sold or provided alcohol to the intoxicated person, and
- The defendant caused or contributed to the person’s intoxication.
New York also has a social host law, which allows a person injured by a minor who was intoxicated to sue the person who provided the alcohol, even if it was a private person (i.e. not a business). This would be in situations where adults serve alcohol to minors in their home. Social host law does not apply to serving alcohol to other adults.
Civil damages for drunk driving accidents
Your New York no-fault insurance should cover some medical treatment, but if your injuries are very severe, it might cost more than the maximum limits on your policy. If your economic (financial) damages total $50,000 or more, you can pursue a legal claim against the drunk driver. You would first make a claim against the driver’s liability insurance policy.
You can receive pain and suffering damages if you have a serious injury like a fracture, limb loss or disfigurement, or the death of a family member.
If insurance doesn’t cover your costs, you’re entitled to these damages:
- Costs for medical treatment (past and future)
- Costs for lost wages or earning capacity for time off from work as a result of the accident
- Pain and suffering (and other non-economic damages)
3 ways a drunk driving claim differs from other car accidents
- A drunk driving accident can result in both criminal charges and a civil claim. You (the plaintiff) don’t really have to worry about the defendant’s criminal penalties, except to the extent that you need to know what they are. If the defendant pleads guilty or is convicted of a drunk driving offense, it establishes “negligence per se” in a civil personal injury case. That means the driver is considered negligent because they already violated the law. That makes it easier to prove liability in a personal injury claim.
- There might be more than 1 defendant. In a regular car accident between 2 vehicles, the defendant is usually the driver who caused the accident (this might be different if you’re involved in a truck accident, which can have several defendants). As we mentioned earlier, the New York Dram Shop Act and social host law means that you might have more than 1 defendant, meaning you might need to file a claim against the drunk driver and against the alcohol supplier.
- There might be punitive damages. Punitive damages in a personal injury lawsuit are additional damages awarded to the plaintiff when the defendant’s behavior is “willful or wanton negligence,” recklessness, or “a conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.” There are cases in New York where the court has found that drunk driving rose to the standard that would warrant punitive damages, though it’s evaluated on a case by case basis.
When to call a New York accident lawyer for a drunk driving injury
Since a drunk driving accident can be more complicated than a regular accident, you might want to call a lawyer who can help you through the claims process if you were seriously injured.
If you caused an accident while driving drunk or received a violation or other penalty, you should either seek the advice of a criminal defense lawyer or you’ll be assigned a public defender.
A New York personal injury lawyer understands the law and knows what to do in order to help you get the full financial recovery you need after an accident. The Enjuris personal injury law firm directory can help you find a lawyer near you who’s ready to take your case.
See our guide Choosing a personal injury attorney.