After suffering injuries or losing a loved one in a drunk driving car accident, you may take legal action to recover damages from the drunk driver. Since driving under the influence is a crime, the defendant faces charges in the criminal court.
However, you must sue the defendant in civil court to recover medical expenses and other damages. Alternatively, you can settle with the at-fault driver’s insurance company.
Before you can recover damages, you must prove that the at-fault driver drove under the influence of drugs or alcohol at the time of the wreck. While drunk driving is negligence, you must establish negligence by collecting evidence to prove your case.
This is where a car accident lawyer comes in. The firm can investigate the case, collect evidence, and work with you to create a strategy for the best possible outcome.
Proving Negligence
While proving negligence can be complicated and left to attorneys, you should know the basics of the process.
To prove negligence, you must show that the at-fault driver meets the four elements of negligence:
- The defendant has a duty of care. In this case, a responsibility to drive in a manner that keeps others on the road safe.
- The defendant breached the duty of care. A drunk driver breaches the duty of care by driving under the influence of alcohol or drugs since this action significantly impairs the driver, which makes it unsafe for others on the road.
- The defendant’s breach of duty of care caused the accident that caused your injuries and losses.
- You suffered damages because of the defendant’s actions or inactions. Damages include monetary and nonmonetary factors, such as medical expenses and pain and suffering.
While proving negligence sounds pretty straightforward, you must collect evidence to prove your point. The defendant’s lawyer will also try to disprove your claim, including the evidence you produce.
Collecting Evidence
You might wonder how you can collect evidence if you are injured or where to start if you have lost a loved one in a drunk driving accident. You do not. That is why you hire a lawyer.
Frankly, collecting evidence leaves it open for the defendant to question the evidence, which could affect your case. The defendant could argue that you fabricated or contaminated the evidence, making it inadmissible in court.
However, you may have some evidence that is already in your possession. For example, if you took photos of the accident scene, you can submit those to your attorney. You can obtain a copy of your medical records and the police report.
However, other evidence, such as physical evidence from the accident scene, must go through a chain of evidence that preserves and proves it is related to your case.
Who Collects Evidence in a Drunk Driving Accident Case?
Many people collect evidence in drunk driving cases, including:
- Police officers.
- Emergency medical technicians.
- Accident witnesses.
- Your medical providers, including those in the emergency room.
- Investigators who work for insurance companies, the police, and/or your attorney.
- Law firms.
Those who collect evidence – except for law firms – collect it to investigate a crime, monitor traffic flows, and provide medical attention. However, your drunk driving accident lawyer can also use this evidence to help prove your case. You should allow the professionals to collect this type of evidence.
You can, however, help your case by collecting specific evidence without contaminating the accident scene. For example, if you are able, you might take pictures of the accident. Do not worry about it if you cannot; the police will take photos.
Additionally, you may receive or already have documents and other physical evidence that might help your case. As soon as you retain a drunk driving accident lawyer, you should turn that evidence over to the firm.
Your priority is ensuring you are safe. If it is too dangerous to take pictures of the accident scene because of traffic, for example, do not do it. Also, if the police are looking over the accident scene, let them do their jobs. Interfering by getting in the way so you can take pictures could distract them from gathering evidence that could help your case. It could also contaminate evidence that might support your case.
What Is Evidence?
In a nutshell, evidence is anything that proves a fact about your case.
Evidence in a drunk driving accident case might include:
- What you remember about the accident – creating a journal is a good idea.
- Your recovery process.
- What the drunk driver remembers about the accident.
- What witnesses saw.
- What the police and emergency medical technicians saw and did at the accident scene.
- 911 calls.
- Vehicle damage.
- Videos of the accident.
- Photographs of the accident scene.
- Data from GPS units, phones, onboard vehicle computers, and other devices.
- Security camera and/or traffic camera video.
- Police report.
- Breathalyzer results.
- Blood test results.
- Urine test results.
- Medical bills, invoices, and other documents relating to your accident injuries.
- Expenses for various types of therapy.
- Reports from expert witnesses, including medical and investigative witnesses hired by you or the defendant (usually through your attorneys).
- Earnings records.
- Documents relating to your profession/occupation.
Your drunk driving car accident lawyer will use the evidence to prove your injuries, that you should recover damages, and that the defendant should pay for the accident. If you are in a state that allows punitive damages, your attorney may use this evidence to prove the defendant’s grossly negligent actions or inactions.
Collecting Evidence
Lawyers collect evidence in many ways. One of the easiest ways is obtaining any evidence you have, such as the police report, correspondence from insurance companies, and medical records. If you have trouble obtaining this information or cannot, you need to give your attorney permission (for medical records), and the firm can get the records.
An attorney may investigate or hire investigators to obtain physical evidence from the accident scene and the vehicles involved. Your attorney may also request that you see specialists – expert witnesses – so that they can generate a report about your injuries, especially if you expect your injuries to become long-term or permanent disabilities.
If, with all this evidence, the insurance company still denies your claim or refuses a fair and reasonable settlement offer, your attorney can file a lawsuit on your behalf.
Filing a lawsuit opens additional methods of evidence gathering, referred to as discovery, including:
- Depositions of the at-fault driver;
- Depositions of witnesses;
- Interrogatories, which are written questions that the defendant must answer, sign, and notarize.
- Requests for admissions, which are statements of fact that the defendant must answer truthfully.
- Requests for the production of documents from the defendant.
- Subpoenas duces tecum for documents or oral testimony from the defendant.
- Subpoenas for documents and other evidence from third parties, such as the police, cell phone companies, witnesses, and the at-fault driver.
- Physical and/or mental exams.
What You Can Do to Help?
Andrew Finkelstein Car Accident Lawyer in New York
Some people want to help the attorney with their cases. Even without collecting evidence, you can still add value to your case by taking certain steps. Sometimes, the information you provide can significantly help you win your case.
Medical Care
Always allow emergency medical technicians to treat you at the scene, then seek medical attention immediately. Those who suffered severe injuries have most likely done this step. However, those who put off seeking medical attention because their injuries did not seem serious at first may have injuries that took a few days to show up.
Additionally, always follow your treatment plan. Suppose you miss an appointment for injury treatment or a therapy appointment. In that case, the insurance company will argue that your injuries are not as bad as you claim and will deny your claim or offer you less than you deserve.
Insurance Companies
First and foremost, do not give the insurance companies any information other than your contact information, the date and location of the accident, and your attorney’s contact information.
If an insurance adjuster calls – even from your own insurance company – refer the adjuster to your attorney. They can seem overly persuasive and friendly. Do not fall into the trap of discussing the accident with them.
Evidence You Might Have
You may have documents and physical evidence related to the accident. Never throw anything away if it pertains to the wreck – your lawyer can use it as evidence. Give it to your attorney and let the attorney decide its relevance, even if you do not think it is relevant.
Social Media
Do not post about the accident or your activities on social media. Insurance companies troll social media accounts, looking for inconsistencies in your story.
They will even hold an innocent dinner out with your family against you. Even if your accounts are locked down, do not take a chance, as someone could hack into your account to find out if your injuries are as bad as you claim.
Types of Drunk Driving Injuries
Injuries you could sustain in a drunk driving accident include:
- Cuts, scratches, scrapes, bumps, and bruises.
- Road rash.
- Strains and sprains.
- Pulled and torn muscles and other soft tissue injuries.
- Chemical and thermal burns.
- Simple and compound fractures.
- Crushed bones and other crush injuries.
- Face and eye injuries.
- Ear injuries, including deafness, if the accident causes an explosion.
- Head, neck, and shoulder injuries.
- Traumatic brain injuries.
- Internal injuries.
- Back and spinal cord injuries.
- Amputation of a digit or limb.
In addition to injuries you could sustain in the accident, you could sustain secondary injuries – those that happen as a result of the initial accident injuries.
It could take hours, days, weeks, or even months for secondary injuries to appear.
Examples of secondary injuries include:
- Infections of open wounds.
- Pressure sores (bedsores).
- Oxygen deprivation.
- Chronic pain.
- Loss of motion, even after the initial injury heals.
- Post-traumatic stress disorder, depression, anxiety, and other mental health conditions.
Finally, drunk driving accident injuries could exacerbate pre-existing illnesses and injuries. While you cannot recover compensation for the initial pre-existing illness or injury, you could recover compensation if accident injuries aggravated those injuries.
Recovering Damages After a Drunk Driving Accident
After suffering injuries in a drunk driving accident, you could recover compensation through economic and non-economic damages.
Economic Damages
Sometimes referred to as special damages, economic damages have a monetary value.
Most people recover economic damages, including:
- Doctors’ appointments, surgeries, and follow-up appointments.
- Prescriptions and prescribed over-the-counter medications.
- Ambulatory aids and medical equipment, such as oxygen tanks.
- Physical therapy appointments.
- Psychological therapy appointments.
- Cognitive therapy appointments.
- Occupational therapy appointments.
- Accessibility accessories for your car, including but not limited to hand controls and wheelchair lifts and ramps.
- Accessibility accessories for your home, including but not limited to handrails, grab bars, wheelchair ramps, and widened doorways.
- Lost wages and loss of future earning capacity.
- Compensation for damaged or destroyed personal property.
- Funeral expenses.
- Burial expenses.
- Cremation expenses.
- Specific probate court fees.
- Probate attorney’s fees and costs.
Non-Economic Damages
Sometimes referred to as general damages, non-economic damages do not have a monetary value.
In most cases, only those who lost a loved one or suffered long-term or permanent disabilities can recover non-economic damages, including:
- Pain and suffering, including emotional distress.
- Loss of quality of life if you have to make life-long changes, such as taking prescription drugs or using ambulatory aids.
- Loss of consortium if you can no longer have a physical relationship with your spouse.
- Loss of companionship if you can no longer enjoy time with your family or attend family activities and events.
- Loss of use of a body part, such as an arm or a foot.
- Loss of use of a bodily function, such as your eyesight or bladder function.
- Amputation of a digit or limb.
- Inconvenience if you have to hire someone to do the chores you usually do, including but not limited to lawn maintenance, grocery shopping, home repair and maintenance, and house cleaning.
- Excessive scarring and/or disfigurement.
If you suffered injuries or lost a loved one in a drunk driving accident, contact a personal injury attorney in New York for a free case evaluation.