Drunk driving is the 4th leading cause for traffic fatalities in Utah. Each year over the past 10 years, drunk drivers have killed an average of about 37 people each year in Utah. Imagine the number of individuals and families impacted by these drunk drivers. Hundreds more Utahns sustain serious or catastrophic injuries from drunk drivers.
Our attorneys at Parker & McConkie have personally witnessed the devastation that follows from a drunk driver traffic accident. If you or a loved one has been hit and injured by a drunk driver, what do you need to know? Here are the topics we cover in this guide:
Although laws and statutes are not the most exciting topic, it is difficult to write a meaningful article on drunk driving accidents without including a summary of the laws in Utah that control such accidents. So, try to stay with us!
Utah’s traffic laws are in “Utah’s Code” or Utah’s statutes, specifically Title 41, Chapter 6a, Part 5. Here is a link to the first section of Part 5: https://le.utah.gov/xcode/Title41/Chapter6a/41-6a-S501.html.
Section 501 is the first section in Part 5. It lays out all the important definitions that you’ll find throughout Part 5. These definitions become meaningful as you begin reading the next sections.
Section 502 sets the blood alcohol concentration (BAC) limit at .05 grams. This means that a person may not operate a vehicle with a BAC of .05 grams or higher. Section 501 describes what it means to “operate” a car. For example, if a person is sleeping in a car, or the car is turned off and parked, then the person is not “operating” the vehicle.
There are a couple important points about 502. First, if someone has a BAC less than .05 grams, but also has other drugs in his or her system that impair that person’s ability to drive, then that person is still breaking this law. Second, a breathalyzer or blood test can be taken at the scene or hours later at a different location. A test taken closer to the time of the accident or operation of the vehicle is going to show a more accurate BAC level than one taken several hours after the accident.
Section 502.5 sets the penalties for driving with a BAC of .05 grams or greater. For first time offenders (and in some situations, second time offenders), the drunk driver can plead guilty to a class B misdemeanor. This includes a fine, probation period, and having to undergo screening and educational classes that our rehabilitative in nature. The drunk driver cannot plea to a class B misdemeanor if his BAC was .16 grams or greater, or was under the influence of other drugs and alcohol at the time of operating the vehicle.
Section 503 bumps up the penalty to drunk drivers from a class B misdemeanor to a class A misdemeanor or third-degree felony. To be guilty of a class A misdemeanor, one of the following must be shown:
To be guilty of a third-degree felony, it must be shown that:
Section 504 simply states that the drunk driver has no excuse for his actions. If you’re driving drunk, there’s not defense to this.
Section 505 tells the judge how to sentence the convicted drunk driver. This can include probation, fine, mandatory classes, community service, home confinement, electronic monitoring, or jail time. The greater the violation, the worse the sentencing.
Section 506 explains how and when electronic monitoring may be used. Electronic monitors not only track the drunk driver’s whereabouts, but it can also report his or her BAC at any given time.
Section 507 gives instructions on supervised probation of a drunk driver.
Section 508 allows police officers to arrest a drunk driver without a warrant. If the police officer has “probable cause”—or reason to believe that the suspect has been drinking alcohol—then the police can arrest that person on the spot. The police officer might have probable cause because the officer observes a suspiciously moving vehicle, sees open containers, smells alcohol on the driver’s breath, or other red flags.
Section 509 permits and even requires the Drivers License Division to suspend the drunk driver’s drivers license for a certain amount of time depending on the seriousness of the violation or the number of previous violations.
Section 510 simply says that local governments must adhere to the provisions and penalties in Part 5. Local rules can be stricter in some cases, but local and city governments cannot be more lenient.
Section 511 requires state courts to collect and maintain all the data and statistics for their DUI cases. This allows the state department to know how to improve public safety when it comes to minimizing the number of DUI cases in Utah. The Commission on Juvenile and Juvenile Justice prepares a report each year for the Judiciary and Transportation Interim Committees, which then meets to discuss public policy for DUI matters.
Sections 512-514 give more detail on the pleading procedures and processes for DUI cases.
Section 515 says that blood or fluid tests are admissible in judicial proceedings if they were taken in a way that is reliable. Utah commissioners have set certain standards and procedures to make sure the tests and the reports are reliable and trustworthy.
Section 515.5 describes the 24/7 sobriety program for convicted drunk drivers. This allows the state a lot of freedom to take random blood or urine test.
Section 515.6 requires Utah police officers to stay current in field sobriety test training. Officers need to know how to conduct a reliable, accurate field sobriety test so that it can be used against the drunk driver when being convicted of the crime.
Section 516 simply says that chemical tests—blood, alcohol, breath—are admissible at trial, unless there’s a rule of evidence that would otherwise keep it out. This is key evidence against a drunk driver to show that he or she was driving drunk at the time of operating the vehicle.
Section 517 takes us in a new direction. This covers drunk drivers with a BAC of less than .05 grams but who had a “controlled substance” in his or her system at the time of using a vehicle. This typically applies to someone having marijuana or meth in their system while driving. The list of controlled substances is long. You really need a PhD in chemistry to be familiar with these substances. If you want to see the list, go to: https://le.utah.gov/xcode/Title58/Chapter37/58-37-S4.html?v=C58-37-S4_2020022820200228.
Section 517 then goes on to explain the penalties to someone who drives under the influence of drugs, including the suspension of one’s drivers license and substance abuse treatment.
Section 518 requires those convicted of drunk driving use an ignition interlock system during probation or for the indefinite future. Ignition interlock systems is installed on the vehicle, has a breathalyzer test, and prevents the driver from starting the vehicle when his or her breath alcohol concentration exceeds .02 grams or greater.
Surprisingly, section 518 still allows the convicted drunk driver to operate a vehicle as an employee. The employer just needs to be aware of the employee’s history and know each time the employee is driving on the job.
Section 518.1 sets rules for the use of ignition interlock systems. It makes it illegal for anyone to circumvent or tamper with the system, knowingly give to an “interlock restricted driver” a vehicle without a system in the vehicle, fake a breath test by having a third-party blow into the system, or sell the system without permission. It also prohibits an interlock restricted driver from renting a car without an ignition interlock system. A violation of this section is a class B misdemeanor.
Section 519 allows more than just city prosecutors to prosecute drunk drivers. This section allows municipal or town prosecutors to also prosecute these cases in Utah. It basically opens up more resources for prosecuting DUIs.
Section 520 may surprise a lot of people. This section says that any person driving a car in Utah consents to a breath, blood, urine, or oral fluid test if they were under the influence of drugs or alcohol while driving the car. In other words, if there’s probably because you were drunk driving, you don’t have to give the cops permission for them to take these tests.
Even further, if someone refuses a test, they can lose their driver’s license and go on probation for up to ten years. The drunk driver doesn’t get to choose which test he or she gets. The police officer decides. Also, the drunk driver does not have the right to an attorney when deciding whether or which test to take. If the judge issues a warrant for a blood test, and the drunk driver refuses, he can be guilty of a third-degree felony.
Section 521 is a continuation of section 520. Basically, if someone refuses a test, then the police officer will suspend his or her drivers license. If this happens, section 521 says the drunk driver is entitled to a hearing.
Section 522 says that a police officer or other official can take a blood or chemical test of a dead or unconscious person without any permission from the family. They don’t have to wait for the drunk driver to become conscious to take the test.
Section 523 tells us who can draw blood. As you’d guess, it can be a doctor, nurse, paramedic, or physician assistant.
Section 524 still deals with refusal to submit to a chemical test or any other test. This section allows refusal of a test to be used at trial to show that the drunk driver is guilty.
Section 525 protects health care providers from liability in providing medical information to a police officer. This is typically protected, private information, and a nurse or doctor would need permission to release it. But this section removes that privacy from a drunk driver.
Section 526 makes it illegal for the driver of a car, golf cart, motor scooter, or class 2 electric bicycle to drink alcohol whether the vehicle is moving or parked. Passengers in a car are also not allowed to drink alcohol, even while the vehicle is stopped. This also includes boats. Finally, this section makes it illegal for anyone to have an open container of alcohol under all these circumstances. There are exceptions for campers, motor homes, limousines, buses, and large passenger boats.
Section 527 allows police officers to impound the drunk driver’s car.
Sections 528 makes drunk driving also reckless driving. This is a class B misdemeanor.
Section 529 and 530 explains that when someone is convicted of driving drunk, they become a “alcohol restricted driver,” which simply means, the BAC limit changes from .05 grams to .00 grams for that person. That person cannot ever drive with any amount of alcohol in her system. Otherwise, she is guilty of a class B misdemeanor.
76-5-207 Automobile Homicide
Chapter 76 is in the criminal code of the Utah Code. Chapter 5 is Offenses Against the Person. Part 2 deals with Criminal Homicide.
Section 207 is directed to those that kill someone while drunk driving. It is a third-degree felony to negligently kill another person while driving drunk. If the drunk driver had been previously convicted of a DUI, it becomes a second-degree felony. If the drunk driver is grossly negligent, for example, driving 110 miles an hour and steering into oncoming traffic, then he or she is guilty of a second-degree felony.
32B-15-201 Liability for injuries and damage resulting from the distribution of alcoholic products
Title 32B is the Alcoholic Beverage Control Act. Just as the name suggests, this chapter is meant to set rules on the distribution and use of alcohol. Chapter 15 is the Alcoholic Product Liability Act. This chapter is meant to punish those that improperly or negligently use, sale, or distribute alcohol. Section 201 outlines a person’s or company’s liability for unsafely or negligently selling or distributing alcohol to individuals. This is often referred to as “dramshop liability.” The meaning of dramshop is barroom.
Section 201 makes bars and individuals liable for unlawfully serving alcohol to guests if that guest gets in a car, drives drunk, then injures or kills someone. If the drunk driver kills another person, then the decedent’s family, as heirs, can claim damages against the drunk driver.
What is “unlawful” distribution of alcohol? It’s when an individual or business distributes alcohol to someone under 21 years of age, to someone who is apparently drunk, to someone whom the server of alcohol knew or should have known that the person was drunk, or to someone who is a known interdicted person. An interdicted person could be someone with a restricted drivers license. Yes, this includes someone hosting a party at her home.
Here’s something we don’t like as personal injury lawyers – Section 201 doesn’t allow our clients to recover punitive damages in dramshop cases.
Two-year statute of limitations
You have only 2 years to file a dramshop case, or a case under 32B-15-201. This means if you don’t file a lawsuit against the business or distributor of alcohol within 2 years of the date of the accident, you lose your case. Many people and attorneys miss this deadline in Utah. They assume that dramshop cases fall under the typical four-year deadline for injury cases. Beware of this trap!
The family members, or heirs, of a person killed by a drunk driver have the right to pursue a claim against the bar or distributor of alcohol. The heirs can recover damages for medical bills, wage loss, pain and suffering, loss of companionship, emotional distress, and loss of consortium.
The Utah legislature has disappointingly placed a cap on how much an injured person or the injured person’s heirs can get from a bar or distributor of alcohol. The cap is $1,000,000 for an individual and $2,000,000 total for all persons injured or harmed.
A bar, gas station, restaurant, or other distributor of alcohol can pursue the drunk driver for contribution or reimbursement for the money the distributor had to pay the injured person.
You are entitled to be compensated for the following damages from the responsible parties:
If you have car insurance yourself, the first in line to pay for medical bills is your car insurer. In Utah, you are required to have Personal Injury Protection, or PIP, coverage. This is sort of like health insurance under your auto policy. Most PIP coverage is for $3,000 but can be as high as $10,000 or even $100,000 in rare instances. You can find the amount of your PIP coverage by looking at your Declaration Page of your insurance policy. Here’s an example of a Dec Page showing coverage amounts:
You’ll notice that the second row of this policy shows $10,000 in Personal Injury Protection coverage. That means that this policy holder, if hit by a drunk driver, will have $10,000 available for his or her medical treatment before health insurance begins paying medical bills. This $10,000 can also go toward the injured person’s health insurance deductible.
If you are unsure of what amount you have in PIP coverage, give us or your insurance agent a call, and we can help you find out your coverage amounts.
After PIP insurance is “exhausted” or all spent, the next in line to pay medical bills is your health insurer. If you don’t have health insurance, then you should talk to the hospital or medical provider about applying for financial assistance. Or you can check with the healthcare marketplace to see whether you can enroll for free health insurance coverage. If you need to shop for health insurance, healthsherpa.com is a great place to go to get a free quote or health coverage.
If you do have health insurance, be sure to provide the hospital or each doctor’s office that you visit a copy of your health insurance card. Also, it’s a good idea to give your health insurer the names of all the medical providers you visit. This ensures that you will comply with the timely filing requirements of your health insurance policy. If you’re late to file a claim with your health insurer – usually after 1 year – your health insurer will deny payment.
Even if you have health insurance, you will probably have “patient responsibility” amounts that you must pay out-of-pocket. The patient responsibility amount is typically 20% or 30% of the charged amount but can vary depending on your health insurance policy.
Victims of drunk driving may also apply for benefits with Utah Office for Victims of Crimes (crimevictim.utah.gov). The Utah Office for Victims of Crimes will grant almost $4,000,000 to victims of crimes throughout the State of Utah. Just simply go the link above and click on “File A Claim.” Your application will be reviewed and processed within 60 days. The application is very easy to fill out.
Next, you can recover money from the auto insurer of the drunk driver that injured you. Unfortunately, those that cause accidents while driving drunk do not carry high amounts of insurance coverage. It’s usually not the drunk driver’s first time getting caught driving drunk. Consequently, an insurance company will only insure them for so much coverage. In Utah, the minimum bodily injury limit requirement is only $25,000. Some insurers – Bear River Mutual being the most common – even have a “step down” clause that says if the insured causes an accident while drunk, the insurance coverage steps down to a lesser amount, usually only $15,000. Check out our Ultimate Guide to Personal Injury Claims for more detail on how to file an insurance claim.
In some circumstances, you can get compensation from businesses or hosts of parties that served the drunk driver. This is referred to as “dramshop” liability. Lastly, you can recover money from your insurance company. If the drunk driver doesn’t carry enough insurance, which is often the case, you can claim underinsured motorist (UIM) coverage under your automobile policy. UIM coverage will be at least $25,000. Read our blog post entitled Tips for Purchasing Auto Insurance to understand UIM coverage.
Step 1: Contact an attorney.
You do not want to do this alone. It is overwhelming to take on the insurance companies. We are experts in our field and can help you. With a lawyer on your side, you’ll avoid saying the wrong thing or miss out on thousands of dollars in recovery.
If you hire Parker & McConkie, experienced drunk driving injury lawyers, we will complete all the following steps for you.
Step 2: Notify all insurers.
There are several insurers to involve. First, notify the drunk driver’s car insurance company. Notify your car insurance company. If you have health insurance, provide all medical providers with your health insurance information. If you were on the job, notify your human resource manager to set up a worker’s compensation claim.
Step 3: Get a copy of the police report.
The investigating police department will gather crash information, witness statements, and photographs/video of the scene. This may also include a recorded field sobriety test. The investigation may last a few days up to several months. Typically, if a death occurs, the investigation will take much longer. Also, don’t forget to request records from the fire department and paramedics. Lastly, you may need to make a separate request for the toxicology report.
Step 4: Put together a timeline of events for at least 24 hours before the incident.
You must have a clear timeline of events to succeed on a drunk driver claim. This is especially true when going after the bar, restaurant, or host that served the drunk driver. Alcoholics or habitual drinkers know they won’t be served if they drink too much at one establishment. Consequently, they know they need to “bar hop” to get the alcohol they crave. This complicates the timeline.
Interview witnesses to support your timeline. Witnesses can also fill in holes. Witnesses are often listed in the police report.
You may need to subpoena other evidence, particularly if it’s evidence the restaurant owns. Restaurants, bars, and gas stations don’t hand over damning evidence. For example, you’d likely need to subpoena point of sales receipts, video footage, and internal investigation reports.
Step 5: Continue to get medical treatment.
The most important thing you can do is to get back to normal health. Follow up with your doctors until you no longer need treatment. Rely on family members and friends to help you. If you’re injured, you especially need a lawyer to help you preserve all important evidence and get you compensated.
Step 6: Demand fair compensation for your injuries.Once you’re healed and no longer seeking medical treatment, demand a settlement amount from the insurance companies. Please refer to our Frequently Asked Questions section on What is My Case Worth for more details on the types of damages you can recover.
It can be overwhelming dealing with all the people involved after a drunk driving accident. We have found that listing them all out can help keep track of everyone’s involvement and keeping things moving forward. Listing everyone out also helps makes sure you request and receive all the necessary information to successfully resolve your case. Except for the injured person and the drunk driver, here’s a nearly complete list of who you can expect to be involved from start to finish:
Here are a few examples of the many drunk driving cases we’ve handled dealing with dramshop liability. We have changed the names of the parties involved to protect their privacy.
Our client, Joe, was stopped at a red light. He was returning home from work at 2:00 a.m. Michael had been drinking a lot the past evening and into the early morning. His BAC got up to .25 grams, or over 3 times the legal limit. Michael was traveling 90 mph and was too drunk to notice Joe stopped at the red light. Michael plowed into the back end of Joe’s car, snapping Joe’s neck, and killing him instantly. Joe’s car exploded, and his body burned up inside the car.
As it turns out, Michael visited 3 bars in the previous 6 hours. He had a history of binge drinking. By the time he made it to the third bar, he was slurring his words and having a hard time keeping his balance while walking. On the restaurant’s surveillance video footage, you could see Michael stumbling around and openly and clumsily flirting with restaurant staff. Our forensics expert estimated his BAC to be above .18 grams at the time he entered the third restaurant.
The restaurant broke the law when it served Michael, and openly drunk customer. Consequently, we successfully pursued a “dramshop” case against the restaurant and recovered the $1,000,000 policy limit from the restaurant. We also received another $500,000 from the second restaurant that served Michael.
Sheryl’s life changed when an oncoming drunk driver floated into her lane, and hit her car head on at 50 mph. Charles, the drunk driver, had been drinking at a local bar for two hours around lunch time. He left the bar, got in his car, and crossed over into Sheryl’s lane of traffic. Sheryl became permanently paralyzed on the entire left side of her body.
We gathered three important pieces of information while pursuing Sheryl’s case against the bar: 1) Charles’ BAC at the time he left the restaurant, 2) witness statements as to Charles’ drunken behavior in the bar and 3) the extent of Sheryl’s life-changing injuries.
Charles had a restricted drivers license at the time of the accident. He also had a reputation in the community of being an alcoholic. It was a small community, and the bartender knew Charles’ history of drinking. These facts also helped us uncover the overall context in this case.
Tony, a 17-year old drunk driver, killed his 15-year old brother, Jacob, who was a front-seat passenger. Tony was driving too fast around a bend in the road and flipped the car. Jacob was ejected, and the car rolled over him, killing him instantly.
Tony carried only $25,000 in bodily injury coverage. Although Tony’s insurance company paid the $25,000, this was not enough money to compensate Jacob’s family for the wrongful death of their son, Jacob.
Jacob’s surviving parents hired us to pursue a claim against the gas station that sold Tony a 24-pack of beer. Tony was only 17 years old when he bought the beer. He used a fake driver’s license.
When Tony enters the gas station around 6:00 p.m., he is not drunk. The store camera captures Tony’s visit. In the video footage, it’s clear that the store clerk knows Tony personally. She asks for his driver’s license but never actually looks at it. The clerk never scanned his license, which is required by law.
After several months of litigation, we prevailed at showing the gas station negligently sold Tony the beer, leading to the death of Jacob. This is not to say that Tony does not share a large majority of fault for Jacob’s death. However, the gas station also shares some responsibility for Jacob’s death.