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California auto accident prop 213 question: Exception where at fault driver was DUI. What if the D.A. cuts drunk driver a deal?
Anonymous2 views5 answers
Ok, so if you are uninsured you can't recover certain damages. But there is an exception under the law if the person causing the accident was at fault. This happened to my cousin. So the question is, does she need to talk to the D.A. or otherwise insure that the drunk who hit her is actually convicted of driving under the influence as opposed to say plea bargaining for reckless driving, etc. If that is beyond her control, will she still get the benefit of the exception?
As you state, normally, if a driver is driving without insurance in California and even if they are not at fault in an auto accident, they would not be entitled to claim damages for pain and emotional distress under Prop 213 (now Civil Code 3333). They would only be entitled to recover "economic" damages like medical bills and property repair costs. One of the exceptions to this rule is when the at fault driver is driving under the influence of alcohol or drugs. A criminal conviction of this offense would be the best "proof" as the at fault driver would be found "guilty" under a higher burden of proof. However, a criminal conviction is not necessarily the only way to prove DUI. You should retain a personal injury attorney who can obtain the police report and subpoena the blood alcohol evidence from the DA. A good personal injury civil attorney could use this along with expert testimony, if necessary, to show that the driver was driving while intoxicated.
It is my understanding that the code requires two things. driving under the influence AND a conviction. (The code states,: In the event a person described in paragraph (2) of subdivision (a) was injured by a motorist who at the time of the accident was operating his or her vehicle in violation of section 23152 or 23153 of the Vehicle Code, and was convicted of that offense, the injured person shall not be barred from recovering non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages.)
I suggest you tell your cousin to contact the prosecuting attorney and let the attorney know you cousin sustained injuries and that she is willing to assist the attorney (come to court to testify) so the driver is prosecuted and convicted of DUI.
I believe that Mr. Klein is correct that Prop. 13 requires that the other driver was driving under the influence AND is convicted. Your cousin should consult with an attorney who is experienced in handling personal injury matters and talk with the D.A.
