Alaska Attorney: What to Do if Hit By a Drunk Driver

This video features Mark Choate, a Criminal Law attorney based in Alaska.

Video Transcript:

Mark Choate:

I would say always contact a lawyer if you’ve been injured by a drunk driver—always. I would say contact somebody, even if your injuries are a little bit questionable.

Rob Rosenthal:

If you're injured in a collision with a drunk driver, could you have a civil case in addition to a criminal case? Well, that's what we're going to find out right now, because that's what we're going to ask the lawyer. 

Hi again, everybody. I'm Rob Rosenthal with askthelawyers.com, and my guest is Alaska attorney Mark Choate who has many years of experience helping people who have been hurt because of someone else's negligence. 

Mark, good to see you again. Thank you for helping us out today.

Mark Choate:

Great seeing you, Rob.

Rob Rosenthal:

I want to remind everybody that if you want to ask questions about your specific situation, it's easy to do. Just go to askthelawyers.com, click the button at the top of the page that says “Ask a Lawyer”, and it'll walk you right through the process right there, and it's free to do too.

Mark, let's just start off. I guess drunk driving is a problem everywhere, but let's talk about your area specifically. What about Juno and that area? Is it a big problem there? What have you seen in your experience? 

Mark Choate:

Drunk driving has, I think, been a problem since I started practicing about 42 years ago. It's always been an issue. I think it has actually decreased some in the last decade because there's more public awareness, and the fact that people have cell phones means that when someone's driving erratically, it's often called in or captured by someone's video. So there's more information about drunk driving now than there used to be, but it's a big issue. Surprisingly, I would say we see both in Juno and here around the state in Alaska, almost on a daily basis injuries involving drunk driving.

Rob Rosenthal:

So if someone is injured in a collision with another driver and they suspect the other driver's been drinking. What's your advice? What should they do? What's the process? 

Mark Choate:

Well, there's really two issues. The first issue is that drunk drivers almost 99% of the time, if the police are called, they're going to arrest them and they're going to proceed with the criminal case against the drunk driver. From the civil side, which means the money damages side, it’s usually not enough when you go, “Well, gee, I'm glad that person is doing three days in jail. Or that person's got an ankle monitor.” You want to get recovery. The law provides some special protections for people who've been injured by drunk drivers here in our state. That includes the fact that you get your actual attorney's fees when you've been injured by a drunk driver. It's one of the few places where that happens, so that can be some incentive if there's an insurance company that insured the drunk driver's car to get them to settle. I would say in the last six months I've done two or three of these, and you still have to prove your case like you would with any other, which means not only that the other driver was involved, but that you have injuries, and what the injuries are and how they'll affect you long-term, but you certainly have some advantages when the driver has been arrested. 

Often there’s police video; body cams are becoming much more common, so you'll see much more video of the drunk driver at the scene talking about things. So there's more to work with. I think for the person who's been injured it also feels more hurtful. It's one thing when someone's not paying attention; you feel bad, and you feel unhappy, but when someone's been drinking and they've hurt you, it's much more significant because it truly was as a result of somebody else breaking the law and deciding that they didn't care if they hurt somebody else. So there are more emotional consequences when you're hit by someone who's drunk, just as when anyone commits a crime. 

Rob Rosenthal:

That's really interesting. I hadn't really thought about that. Explain a little bit for people that might be confused, who might say, “Well, there's a prosecuting attorney, a DA or something involved. They'll take care of the case.” Explain the difference between the civil and the criminal, and what a personal injury attorney can do to help.

Mark Choate:

The criminal side is really the government, whether it's your county, or your city, or your state bringing charges for violating a criminal law, which usually now it's about 0.08 blood alcohol will cause you to be considered to be driving while intoxicated or under the influence. There are criminal penalties for that, which can include jail time, probation, electronic ankle monitors, some fines, and they may order some what's called restitution, which is some dollar damages for your loss of medical bills and things like that. Very hard to collect. 

On the civil side, that's the case that you individually have against the drunk driver for their violation of law which causes you harm, and because they've been drinking, you have some sort of amped-up remedies because you could sue them for not just negligence, which means a failure to use ordinary care, but gross negligence, which means that they were grossly negligent and even reckless conduct, where especially depending on the blood alcohol, you can say this person absolutely was reckless when they drove. You can even request punitive damages, which means a punishing damage on top of your normal damages.

Rob Rosenthal:

Is it the kind of thing, Mark, where someone should wait until the end of their criminal case and see how that turns out before they contact someone like yourself to help with the civil case? Or do they go on at the same time? What's your advice?

Mark Choate:

Well, you know in drunk driving cases, unless there's a death or it results in a felony charge, which it can—more frequently now what used to just be a DUI or DWI, meaning a misdemeanor charge for drunk driving, will be amped up into a felony because there is bodily injury. So you can see some felonies charged for drunk driving now; they can take longer than a misdemeanor. But I would say always contact a lawyer if you’ve been injured by a drunk driver—always. And I would say contact somebody, even if your injuries are a little bit questionable. You just don't know yet how things are going. 

One that we did just recently, a drunk lady runs into the side of this man’s van; he's able to get out of the van, walk around, he’s feeling a little bit of a hitch in his hip, but doesn't think much of it and doesn't immediately go for treatment, and then within the next six months his hip is bothering him and bothering him and it's getting worse, and he does a lot of physical labor so it was really affecting him. It turned out that he had what was called a tear of the labrum, which is some of the tissue that connects the hip to the pelvis, and those labral tears are $80,000 to repair. So we had to be able to show that this crash caused that tear with an expert orthopedic surgeon, but I just actually recovered money for him and was very happy to be able to deliver that to him. 

So yeah, I would say the sooner, the better. If anything because the lawyers that do this work can normally help advise you to follow through with your medical, to not simply ignore stuff. We have two cases right now where my clients were killed; I represent their estates and both young men were killed because of a drunk driver, and in those kinds of cases the damages are obviously very significant. You need someone to help you parse out how to go after the driver and to look for sources of recovery, because it may not just be the driver's insurance, it could be the business owner or the employer of that driver if the driver was an employee working at the time they were doing that. It could be the dram shop, the place that gave them alcohol when they shouldn’t have. So we do cases involving liquor stores and bars that serve people when they shouldn't have. 

Rob Rosenthal:

One last question, Mark. So what if the person, the drunk driver, is not ultimately charged or found not guilty? Does that mean that the person injured wouldn't have a civil case or are they not connected?

Mark Choate: 

No, it wouldn't. It doesn't matter. It may affect the idea of whether you could get punitive damages, meaning you could show recklessness, but if someone runs into you and they're not using due care, even if, let's say their blood alcohol wasn't 0.08 or because there's some mistake at the scene where the police do something wrong where they can't bring that evidence in, it wouldn't change the ability of a good personal injury lawyer to help you out. Absolutely nothing would stop that.

Rob Rosenthal:

Lots of great information as always, Mark. I learn something every time we talk. Thank you so much for helping us out. 

Mark Choate:

Great talking with you. Take care. 

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been Alaska attorney Mark Choate. I want to remind you that if you want to ask questions about your specific situation, go to askthelawyers.com, click the button at the top of the page that says “Ask a Lawyer”, and you can ask away right there. Thanks for watching everybody. I'm Rob Rosenthal with AskTheLawyers™.

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