!Evidence to prove DUI accident case
A drunk driver injured you in a car accident, and you’re planning an insurance claim or lawsuit. Among the keys to getting fair compensation for your injuries—“damages,” in the language of the law—none will be more important than the evidence you’re able to gather. In particular, you need evidence that proves:
- the drunk driver was at fault for the wreck
- you weren’t to blame for what happened, and
- the nature and extent of your injuries and losses, both past and future.
We explain how you get and use crucial evidence to build your case and defeat the drunk driver’s defenses.
In This Article
What Are the Elements of a DUI Accident Case?
Like most personal injury claims, DUI accident cases are grounded in a legal doctrine called “negligence.” To win your lawsuit, you need to show that the drunk driver was negligent.
The Four Elements of a Drunk Driving Accident Case
These are the four elements of a drunk driving accident negligence claim.
- Duty of care. All drivers have a legal duty to drive with reasonable care under the circumstances. Among other things, this means not getting behind the wheel while under the influence of alcohol or other intoxicating drugs.
- Breach of the duty of care. A drunk driver “breaches” the duty of care—fails to meet it—by driving while impaired.
- Injury. You were injured or your property was damaged.
- Causation. Your injury was caused by the defendant’s breach of the duty of care.
Your evidence must prove each of these elements. In a typical drunk driving accident case, most of the fighting will be over duty and breach, though the defendant also might challenge the nature and extent of your injuries and how they were caused.
Negligence Per Se
In drunk driving accident cases, you might be able to take advantage of a legal rule called “negligence per se.” When the defendant breaks a drunk driving criminal law and causes a wreck, the law will accept proof of a drunk driving conviction as proof of negligence in your civil lawsuit.
In other words, once you introduce evidence of the defendant’s drunk driving guilty plea or conviction, you don’t have to prove that they breached the duty of care. The guilty plea or conviction takes care of that for you. You need only prove injury and causation to make your case. Your lawyer can fill you in on the details.
The Police Report, BAC Tests, and Field Sobriety Tests
One of your first calls should be to the law enforcement agency that responded to the crash scene. You want a copy of the police report, along with the results of any field sobriety and blood or breath alcohol concentration (BAC) tests. Depending on the facts, it might take the authorities anywhere from a few days to a few weeks to complete all the paperwork.
These are the reports and documents you want.
The Police Report
In a drunk driving accident case, the term “police report” is a catch-all that actually refers to two separate documents:
- the traffic crash report, and
- the DUI arrest report.
Together, these reports lay an important foundation for your drunk driving accident case. The traffic crash report describes how the crash happened, while the DUI arrest report is evidence of the responsible driver’s impairment.
You get them by contacting the law enforcement agency responsible for the accident scene. Most will accept a letter request, as long as you provide the names of the drivers and the date and location of the collision. Check the agency’s website to see if you can order it online. You might have to pay a nominal fee for each report.
Field Sobriety Tests
At the crash scene, officers will ask the drunk driving suspect to perform standard field sobriety tests. Police request them as part of their DUI investigation in order to confirm probable cause to arrest. Suspects can refuse testing, but doing so pretty much guarantees they’ll be arrested anyway and taken for blood or breath alcohol testing, or both.
The officer who administers the tests should be trained or certified in how to conduct them and how to assess a suspect’s performance. When they’re done, you’ll find the results documented in the DUI arrest report. Later BAC testing confirms that the suspect was (or wasn’t) driving under the influence.
Blood or Breath Alcohol Content (BAC) Testing
Blood or breath alcohol content tests come in three forms: Preliminary breath tests, in-station breathalyzer, and blood and urine testing. Breath testing results typically will be part of the DUI arrest report. Analyses of blood or urine samples probably won’t be, at least not right away.
Preliminary breath tests. Some law enforcement agencies are equipped with hand-held field testing equipment that allows for a preliminary breath test at the scene. Because they’re considered investigative and designed to support an officer’s probable cause determination, most states don’t allow these test results to be used in court.
In-station breathalyzer. Post-arrest BAC testing takes place at the police station. It’s done using approved, calibrated (tested) equipment operated by an officer who’s trained or certified in its use. For the results of these BAC tests to be used in court, you’ll need to show that the equipment was tested, maintained, and operated following standard protocols and regulations.
Blood and urine testing. Blood testing and urinalysis varies, depending on state law and the accident circumstances. Test results come in the form of a separate lab report, one that’s prepared by a treating hospital or a state crime lab. When a crime lab does the analysis, results can take weeks to arrive. If they’re not part of the DUI crash report you receive, you’ll need to get them separately. Your lawyer will know what to do.
(Learn more about BAC and DUI testing.)
Witnesses, Video Surveillance, and Scene Evidence
You can find basic information about witnesses and the accident scene in the traffic crash report. But you (or more likely, your lawyer) will want to do some follow up, as we explain. You’ll also need to do some legwork to get video surveillance footage.
Get Accident Scene Photos
Pictures of the accident scene will be essential, especially if your case ends up in court. Judges and jurors find it much easier to understand what they see, as opposed to written or verbal descriptions. You want photos and videos of the scene under circumstances matching, as closely as possible, those that existed at the time of your accident.
If you’re able and can do so without interfering with police and first responders, take pictures before the involved vehicles are removed, and while the same lighting and weather conditions prevail. Try to get shots of the vehicles themselves, showing their resting places and any collision damage. Also, get pictures of skid and scuff marks and crash debris.
In addition to being helpful in court, your crash reconstruction expert (see below) will rely on your photos and video to help piece together what happened, and how.
Witness Statements
You’ll probably find very brief crash eyewitness statements in the traffic crash report, but chances are you and your attorney will want much more detail. Strong eyewitness testimony that’s favorable to your side can be powerful, independent proof of who was at-fault and what took place at the accident scene.
But don’t stop with accident scene witnesses. Investigate the bars, restaurants, liquor stores, and other places the drunk driver visited in the hours leading up to the crash. Try to find people who saw them drinking, and who can testify to how much they drank, over what time period, and whether they showed visible signs of intoxication.
Contact witnesses as soon as you’re able, and ask if they’re willing to give you a written or, better still, recorded statement. In addition to finding out what they know about the person responsible for your injuries, ask whether they’ve given statements to others, and if they know of other witnesses who might have information you can use.
Surveillance Videos
In today’s online world, video cameras are cheap, easy to use, and everywhere. Surveillance footage, if you can find it, will help to corroborate your version of the events.
When the crash happened in a commercial area, local businesses are likely to have cameras that might have recorded the collision. In residential neighborhoods, find out if nearby homeowners have outdoor or doorbell cameras. Don’t worry if the pictures are less than optimal. Video experts can improve and sharpen grainy or blurred images to make them more clear.
(Here’s more about how to request video surveillance footage.)
Accident Reconstruction Evidence
When there’s a dispute over how the crash happened, who was to blame, or how you were injured, you (or more likely, your attorney) might hire an accident reconstructionist to review the evidence and offer opinions about the collision and its causes. An accident reconstructionist is an expert, almost certainly an engineer, with specialized education, training, and experience in accident dynamics, road conditions, vehicle crash characteristics, and more.
An accident reconstructionist will review all the available evidence—the crash report, the vehicles involved, the speeds and directions they were traveling, weather and lighting, impact points, vehicle damage, and more—to build a second-by-second digital recreation of how the collision happened, the causal and contributing factors, and how any injuries, deaths, and vehicle damage occurred.
But there’s a catch: Accident reconstruction experts don’t come cheap. You can expect to pay hundreds of dollars an hour for the time they spend on your case. For this reason, you’re likely to hire one only if your injuries and damages are very serious or catastrophic. In a case involving minor or mild-to-moderate injuries, hiring experts just isn’t worth the investment. If yours is a case that justifies these expenditures, your attorney will take care of hiring and working with an accident reconstruction specialist.
We discuss other kinds of expert witnesses you might need in a drunk driving accident case below.
Beating the Drunk Driver’s Defenses
When you sue the responsible drunk driver for negligence, chances are they’ll respond by claiming that you were negligent as well. A form of this defense, known as contributory negligence or comparative negligence, is available in every state. If it succeeds, it can damage or completely destroy your case.
It’s important that you’re prepared with evidence to defeat whatever version of this defense your state allows, especially if you’re in a contributory negligence state where any amount of fault on your part—even 1% of the total—defeats your claim entirely. To do this, you’ll need evidence showing that you weren’t at fault.
Start with the traffic crash report. If the reporting officer found that you also caused or contributed to cause the wreck, it will be documented there. Be ready to explain any such findings. If necessary, your lawyer might have to challenge the officer’s findings on cross examination during trial.
For your part, be ready to testify that you:
- weren’t under the influence of alcohol or drugs
- weren’t distracted by your phone, the radio, or others in your vehicle
- weren’t tired, sick, or otherwise unable to focus and concentrate
- didn’t have enough time to take evasive action or avoid the collision
- were driving within the speed limit, and at a safe speed for traffic, road, and weather conditions, and
- were keeping a careful lookout for other vehicles and problems in the road.
Keep in mind, too, that newer vehicles might be equipped with electronic monitoring systems. Similarly, if you’ve enrolled in your auto insurer’s “safe driver” program, the company might have required that you install a vehicle monitoring device. The other side can get this data if you file a lawsuit.
In either case, make sure that any statements or testimony you give are truthful and consistent with what those devices recorded in the moments leading up to the crash.
Proving Your Injuries and Damages
To this point, we’ve focused mostly on the evidence you need to prove the drunk driver was at fault and you weren't. As we discussed above, you’ll also need evidence to prove your injuries and damages, meaning how you were hurt, the care and treatment you received, whether you’ll need future care, your lost income, and more.
In any drunk driving car accident case, your damages will fall into two categories: Economic losses and noneconomic losses.
Economic Losses
Economic losses are those you or your insurance company pay out of pocket. Here are some common examples.
Medical costs. You (or your insurer) will pay doctor, hospital, rehabilitation, therapy, pharmaceutical, and other health care-related costs. Amounts you pay for medical equipment like a wheelchair, a walker, or crutches are also included.
Medical records and bills will prove how you were treated and why your treatments were reasonable and medically necessary. Your treating doctors and other providers also can testify about your injuries, how they were treated, and how they impacted your ability to live and work.
Lost wages and income. You’re entitled to recover income you lost because of your injuries, along with the value of any lost employment benefits. When you’re self-employed and not receiving a regular paycheck, you can seek recovery for income you would have earned but for your injuries.
A letter from your employer’s human resources office will document lost wages or salary and the value of any lost benefits. For self-employed proprietors, your accounting and tax records will document historical earnings and lost business opportunities.
When your injuries are likely to cost you income in the future, those losses can be recouped as well. You’ll likely need a financial expert like an accountant to calculate and prove future losses.
Auto repair or replacement costs. You’re allowed to recover amounts you must pay to get your vehicle repaired and back on the road. Get two or three estimates from reliable repair shops. When your car is a total loss, you’re usually entitled to be reimbursed for its actual cash value. Your insurance company can help with this amount, and you can look to reputable auto valuation sources like Kelley Blue Book as well.
Noneconomic Losses
Noneconomic losses are damages you don’t pay directly out of your pocket. In a drunk driving car accident case, they’re likely to include:
- pain and suffering
- disability and disfigurement
- emotional distress
- loss of consortium, and
- loss of enjoyment of life.
Unlike economic losses, these damages usually aren’t proved with documents. Most of the proof will come from testimony by you and other witnesses. But if you’ve sought counseling or therapy for depression, anxiety, post-traumatic stress, or similar emotional conditions, your treating therapist’s testimony (and records) will be key.
What About Punitive Damages?
Punitive damages aren't meant to compensate you for injuries and losses you suffer at the hands of a drunk driver. Instead, they're intended to punish extreme or outrageous misconduct, and to deter others from behaving the same way. Most states allow punitive (sometimes called "exemplary") damages. They're rare in car accident cases, but more common in alcohol-related accidents, especially those resulting in catastrophic injuries or death.
How Experts Help Prove Your Drunk Driving Accident Case
An expert witness is a person who’s qualified, by education, training, or experience, to offer opinions in court regarding scientific, medical, or technical matters that are beyond the knowledge of most judges and jurors. It’s up to the judge in your case to decide whether an expert witness is qualified to testify and, if so, the subjects on which they’ll be allowed to offer opinions.
In addition to accident reconstruction and financial experts, discussed above, these are some of the experts you might need in a drunk driving car accident case.
Forensic Toxicologist
This is typically someone with a medical, biology, or chemistry background who specializes in analyzing biological samples—like blood, urine, saliva, and hair—for the presence and concentration of drugs and alcohol. Using blood and breath samples obtained after a drunk driving motor vehicle accident, a forensic toxicologist can calculate a likely range of blood alcohol concentrations present in a driver’s system at the time of the collision.
Life Care Planner
When your injuries are severe or are long-term or permanent, there’s a good chance you’ll need continuing medical care and treatment. A life care planner will prepare a report detailing the care you’re likely to need, when and why you’ll need it, and the probable costs. Most life care planners are nurses or doctors with specialized training and experience in forecasting long-term and lifetime medical care needs.
Medical and Rehabilitation Experts
These experts will work with your life care planner to help identify, and explain the need for, specific medical, surgical, emotional, and other treatments. These experts are often physicians and therapists with advanced degrees and experience in treating patients with complex injuries, conditions, and care needs.
How Will I Pay for Expert Witnesses?
As mentioned above, expert witnesses tend to be very expensive. Chances are you don't have the money to pay for them. How do they get paid?
When you hire an attorney who takes your case on a contingency fee arrangement, most will also agree to advance case expenses, including the costs of necessary experts. The lawyer then deducts their fee (typically 25% to 40% of any amounts you win in a settlement or jury verdict), together with all the expenses they advanced, from your case proceeds.
When you're speaking with prospective attorneys, make sure you understand both their fee structure and how case expenses will be handled.
Other DUI Accident FAQs
Here are quick answers to some other questions you might have about your drunk driving accident case.
Can I win even if the drunk driver wasn't convicted of DUI?
Yes, it's possible to win your case even without a drunk driving conviction. Drunk driving charges sometimes get dropped or pled down to lesser charges (for example, reckless driving). Other times, they get thrown out because of technical errors in the way police, lab technicians, or others handled the case or the evidence.
The fact of a conviction or guilty plea is just one form of drunk driving evidence. Even without a conviction, you still can gather and use the kinds of evidence described above to show that the responsible driver had been drinking and was impaired at the time of the crash. The lack of a conviction isn't fatal to your case.
Can I sue the bar that overserved the drunk driver?
Possibly so. Most states have dram shop laws, meaning a statute that lets you sue a bar, restaurant, or other retailer that sold or served alcohol to a visibly drunk person. When the driver had been drinking at a social function, social host liability laws—less prevalent than dram shop laws—might put the social host on the financial hook for your injuries.
Dram shop and social host liability laws tend to be narrowly drawn. To succeed, you must follow the requirements of the statute to the letter. An auto accident attorney with expertise in drunk driving cases can fill you in on the details of your state law, and what you'll need to prove to win.
What's the statute of limitations on my drunk driving accident case?
A statute of limitations is a law that puts a deadline on your time to file a lawsuit in court. Every state has them, and there are different deadlines for different kinds of cases. One of the first things you should check is your state's drunk driving accident statute of limitations.
In most states, the deadline to file a DUI accident case is the same as for any other car accident. The range is usually between one year and three years after the date of the wreck. A few states extend the time period in drunk driving cases, especially when the other driver is charged with or convicted of DUI. Your attorney can provide advice specific to your case.
A Lawyer Can Help Gather Your DUI Accident Evidence
The good news is, you don’t have to do this work by yourself. A car accident lawyer—particularly one who’s experienced in handling drunk driving injury cases—knows what evidence you need, how to find it, and what to do with it. In a case like this, you need expert legal help in your corner. The facts and the law are too complex, and the stakes are too high, to go it alone.
When you’re ready to move forward with your case, here’s how you can find an attorney who’s right for you.