Hit by a Drunk Driver in Virginia? Who Can Be Held Responsible, and Why the Bar Usually Isn't

A crash caused by a drunk driver is often among the most violent on the road: a wrong-way collision on the interstate, a car that runs a red light at full speed, a pedestrian struck on the shoulder late at night. The injuries that follow are often catastrophic, and sometimes fatal.

Families in that position usually ask the same question early on: the driver had been drinking at a bar for hours, so can we sue the bar?

In Virginia, the answer is almost always no. But that is not the end of the analysis. Virginia law gives injured people other tools, including a punitive damages statute written specifically for drunk driving cases, and the right claim against the right policies can make a real difference in what a family recovers.

Virginia does not hold bars responsible for what their customers do on the road

Many states have "dram shop" laws that make a bar or restaurant liable when it keeps serving a visibly drunk customer who then hurts someone. Virginia has not adopted one.

The Supreme Court of Virginia addressed the question directly in Williamson v. The Old Brogue, Inc., 232 Va. 350 (1986). The plaintiff alleged that a pub served a customer "prodigious quantities of alcohol" over about four hours, knowing she was drunk and would drive, and that she then crossed the center line and hit him head-on. The court still held he had no claim against the pub. Under Virginia's common law, the court explained, drinking the alcohol, not serving it, is treated as the cause of the crash, and changing that rule is a job for the General Assembly, not the courts.

The court also rejected the argument that a bar breaks the law, and so is automatically negligent, when it serves someone who is already drunk. Serving an intoxicated customer can be a crime under Virginia's alcohol laws, but the court held those laws were not written to protect people on the road, so a violation does not create a lawsuit for the person who gets hurt.

That is still the rule. Proposals to change it have come before the General Assembly, including a 2022 bill, limited to bars serving underage customers, that the Senate Judiciary Committee voted down.

Who can be held responsible

Losing the bar as a defendant does not leave an injured family without options. In a serious Virginia drunk driving case, we look at several possible sources of recovery.

1. The drunk driver, including punitive damages

The driver is responsible for the full harm caused: medical expenses, lost income, pain and suffering, and in a death case, the losses the family suffers under Virginia's wrongful death statute.

Virginia also has a statute aimed specifically at drunk drivers. Under Va. Code § 8.01-44.5, a jury may award punitive damages in a crash case where the driver acted with malice or with conduct "so willful or wanton as to show a conscious disregard for the rights of others." The statute then makes that showing much easier in alcohol cases. The driver's conduct is treated as willful and wanton when the evidence shows that:

• the driver's blood alcohol concentration was 0.15 or higher at the time of the crash,
• the driver knew or should have known that drinking would impair their driving (and the statute presumes that a driver who has been drinking knew this), and
• the intoxication was a proximate cause of the injury or death.

If the driver unreasonably refused a blood or breath test, the statute allows the same result on proof that the driver was intoxicated, which can be shown through their conduct and condition, without a test number at all.

Punitive damages in Virginia are capped. Under Va. Code § 8.01-38.1, the total punitive award against all defendants cannot exceed $350,000, and the jury is not told about the cap. We explain how that cap works in more detail in our post on punitive damages in Virginia. The cap applies to punitive damages only. It does not limit compensatory damages for medical bills, lost earnings, or pain and suffering.

2. A car owner who knowingly let a drunk person drive

In Williamson, the Supreme Court of Virginia distinguished an earlier case in which a father was held liable after his adult son, while intoxicated, drove the father's car into the plaintiff. The court described the owner's liability "for knowingly allowing an intoxicated person to drive his vehicle" as a long-standing common-law principle. When the drunk driver was behind the wheel of someone else's car, the owner's knowledge matters, and it is worth investigating early.

3. An employer, if the driver was working

If the drunk driver was driving for work at the time, for example making deliveries, driving a company truck, or traveling between job sites, the employer may be responsible for the crash as well. Employers and commercial vehicles usually carry much higher insurance limits than individual drivers, which can matter a great deal in a catastrophic injury case.

4. Your own uninsured and underinsured motorist coverage

Drunk drivers are often uninsured or carry only minimum limits. Your own uninsured/underinsured motorist (UM/UIM) coverage can pay when the at-fault driver's coverage is missing or too small. Virginia changed how this coverage works for policies issued or renewed on or after July 1, 2023, and in many cases it now adds to what the at-fault driver's policy pays. We walk through those changes in our FAQ on Virginia's UM/UIM law, and you can read more about UM/UIM claims in Virginia.

How Virginia compares with D.C.

Many crashes in the region involve people who were drinking on one side of the river and driving on the other, so the jurisdiction matters.

One more Virginia rule matters in every crash case: contributory negligence. If the defense can show the injured person was even slightly at fault, Virginia can bar recovery entirely. We explain that rule in our post on Virginia's contributory negligence rule. In drunk driving cases, defendants sometimes try to shift blame to a passenger who knew the driver had been drinking, so the facts of who knew what, and when, deserve close attention from the start.

What this means if you or your family were hurt

If a drunk driver seriously injured you or killed someone you love in Virginia:

• Get the criminal case records. The blood or breath test result, any refusal finding, and the police report can establish the facts the punitive damages statute requires.
• Identify every policy. The driver's policy, the car owner's policy, an employer's policy, and your own UM/UIM coverage may all be in play.
• Find out whose car it was and why the driver was on the road. Those two facts can open claims against an owner or an employer.
• Do not wait. Virginia generally gives injured people two years from the date of injury to file suit, and wrongful death claims carry their own two-year deadline, which runs from the date of death.

A drunk driving crash should not leave a family paying for someone else's choices. The bar may be off limits in Virginia, but the driver, and often others, are not.

Talk to Posey Lebowitz

If you or a family member was seriously hurt or killed by a drunk driver in Virginia, call Posey Lebowitz at (202) 524-0123 or use our contact form for a free consultation. We handle serious injury and wrongful death cases throughout Virginia, Maryland, and the District of Columbia.

This is general information, not legal advice about your case.