Cain v. Lee: Virginia Supreme Court Bars "Punitives Are Disfavored" Instruction in Drunk-Driving Cases
When a drunk driver with a blood-alcohol level three times the legal limit slams into your car, Virginia law says a jury may do more than make the driver's insurance company pay your bills. It may punish him. But for years, defense lawyers softened that punishment before deliberations even began, persuading judges to tell juries that punitive damages are "generally not favored" in the law. Earlier this month, the Supreme Court of Virginia put a stop to it.
The case
In Cain v. Lee, 290 Va. 129 (2015), decided June 4, the defendant rear-ended the plaintiff while driving with a blood-alcohol concentration of 0.24 — three times Virginia's 0.08 legal limit. The plaintiff sought punitive damages under Va. Code § 8.01-44.5, Virginia's statutory punitive damages provision for drunk-driving cases.
Some background on the statute helps explain why the instruction mattered. Most punitive damages claims in Virginia require proof of common-law willful and wanton conduct — a demanding, argument-laden standard. But in 1994 the General Assembly decided drunk driving deserved its own rule. Section 8.01-44.5 makes a defendant's conduct sufficient for punitive damages when specific, objective statutory conditions are met — keyed to the driver's blood alcohol concentration, knowledge of intoxication while drinking, and the causal role of the intoxication in the crash. The point of the statute was to take the punishment question out of the realm of judicial adjectives and give it concrete triggers a jury can find.
At trial, over the plaintiff's objection, the judge instructed the jury that "punitive damages are generally not favored and should be awarded only in cases involving egregious conduct." That language sounds lawyerly and harmless. It came, in fact, from appellate opinions — judges writing to other judges about how appellate courts review punitive awards. But planted in a jury instruction, it works as a thumb on the scale: it tells jurors, before they even weigh the evidence, that the law frowns on the very remedy the legislature created.
What the Supreme Court held
The Supreme Court of Virginia reversed and remanded for a new trial, holding the instruction was error for two reasons.
First, the statutory scheme has no "egregiousness" element. When the General Assembly enacted § 8.01-44.5, it defined exactly when a drunk driver's conduct supports punitive damages — including where the driver's blood alcohol content meets the statutory threshold and the other statutory conditions are shown. A defendant who meets the statute's criteria is exposed to punitive damages, period. Grafting a judge-made "only egregious conduct" filter onto the statute rewrites it.
Second, commentary lifted from appellate opinions has no place in jury instructions. Appellate courts say many things about doctrines — that they are disfavored, narrowly construed, cautiously applied — as guidance for judicial review. Handing that rhetoric to a jury transforms a standard of appellate scrutiny into an advocacy point for the defense.
Why this matters
Punitive damages exist for a reason: some conduct is not just careless but consciously indifferent to other people's lives, and a civil jury is the community's voice in condemning it. Nothing fits that description better than choosing to drive at a 0.24 BAC. The Supreme Court of Virginia has now protected that jury function twice in recent terms — last year, in Coalson v. Canchola, 287 Va. 242 (2014), it reinstated a $100,000 punitive award that a trial judge had cut in half, and now Cain removes the "disfavored" instruction from the defense toolbox.
What this means for injured people in Virginia
If you were hurt by a drunk driver in Virginia, your case is different from an ordinary crash case in ways that reward early, aggressive lawyering:
- Punitive damages are on the table by statute. Under § 8.01-44.5, the intoxication evidence itself — BAC results, refusals, prior offenses — can support punishment damages on top of full compensation. Preserving that evidence (criminal case records, toxicology, bar receipts) is urgent work.
- The jury will now hear the issue straight. After Cain, jurors in DUI punitive cases are instructed on what the statute requires — not warned off the remedy with borrowed appellate rhetoric.
- Insurance still matters. Punitive damages claims interact with liability coverage and UM/UIM coverage in complicated ways, and drunk drivers are frequently underinsured. The insurance analysis should start on day one.
One practical caution to close: the criminal DUI prosecution and your civil claim are separate proceedings on separate tracks. A conviction helps, but you do not have to wait for it, and an acquittal or plea bargain does not end your civil case. Coordinating the two timelines — and getting the criminal-case evidence into your civil file — is part of doing these cases right.
A drunk-driving crash case is both a compensation case and an accountability case. We treat it as both.
If you or a loved one has been hurt, call Posey Lebowitz at (202) 524-0123 or send us a message for a free consultation.
Part of our DMV case law archive, compiled in 2026 to reflect the archive of some of the most important decisions in injury law.