How Legal Claims Work When an Intoxicated Driver Passes Away in the Accident 

Key Points:

• Even if the drunk driver who hit you passed away in the accident, you may still seek full compensation from the insurance company for your injuries. 
• If the driver who caused the accident was driving under the influence of alcohol or drugs, you may be entitled to punitive damages as well as compensatory damages.  
• Proving that a deceased driver was intoxicated at the time of the accident can be a challenge, but it is possible with the right evidence. 
• If the necessary scientific testing is delayed too long it may fail to detect alcohol or drugs, which can make it more difficult to prove the accident was caused by the driver’s intoxication rather than mere negligence 

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While many car accidents cause serious injuries, accidents involving an intoxicated driver are more likely to be severe or even fatal. In fact, drunk driving accidents result in more than 10,000 deaths every year in the United States and account for one third of all traffic-related fatalities.  

There are several reasons why driving under the influence (DUI) is so dangerous. First, alcohol impairs a driver’s judgment, which can lead to drivers making poor decisions such as driving too fast or not paying attention to the road. Because alcohol slows a driver’s reaction time, they may be unable to stop or take steps to avoid a collision. Alcohol can also make drivers more aggressive, which can lead to them taking risks that they would not take when sober. In addition, alcohol can make drivers drowsy, which means they are more likely to fall asleep at the wheel. 

Drunk drivers are a high risk to everyone on the road, including themselves, with statistics showing that 62 percent of those killed in DUI accidents are drunk drivers. And chances are that an accident that is serious enough to kill the drunk driver can also cause severe injuries to their victims, including passengers, other drivers, pedestrians, and cyclists. You should know that even if the drunk driver who hit you passed away in the accident, you may still seek full compensation from the insurance company for your injuries. 

Why It Matters Whether the Deceased Driver Was Intoxicated 

In a typical car accident negligence claim, the victim is entitled to recover compensatory damages that include all economic and noneconomic losses. However, if the driver was not only negligent but reckless or DUI, victims may be entitled to much more compensation in the form of punitive damages.  

Juries award punitive damages in cases where the at-fault driver exhibited “willful misconduct, fraud, wantonness, malice, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b). Under Georgia law, driving while intoxicated meets this standard. While a driver who was reckless may be liable for up to $250,000 in punitive damages, there is no cap on the amount of punitive damages in a DUI claim—it is up to the jury to decide.  

Another reason it matters whether the deceased driver was intoxicated is because it is generally easier to prove fault in a car accident claim involving DUI. Under Georgia law, DUI is considered negligence per se, which means the driver is presumed to be negligent simply by virtue of the fact that they were driving under the influence. Of course, the drunk driver must have actually caused the accident to be found liable, but the plaintiff has an easier time meeting their burden of proof in a DUI case. 

The Challenges of Proving That a Deceased Driver Was Intoxicated 

In car accident cases where alcohol or drug use is a factor, it can be less difficult to prove that a driver was DUI when they survive the crash. For example, when the suspected drunk driver is alive at the crash scene, the police typically can assess whether they may be DUI through breathalyzers, interviews, and behavioral observations.  

Based on that evidence, the driver may be subjected to further testing and criminal charges, which can also be used as evidence in a civil claim. When the driver does not survive the crash, however, the police and injured victims must rely on other types of evidence to prove the at-fault driver was intoxicated. 

What Evidence Can Prove That a Deceased Driver Was Intoxicated? 

Proving that a deceased driver was intoxicated at the time of the accident can be a challenge, but it is possible with the right evidence. Here are some of the ways that you or your attorney may prove the deceased driver was DUI:  

Blood Alcohol Concentration (BAC) Testing 

A BAC test is a medical test that measures the amount of alcohol in a person’s blood and is expressed as a percentage. Blood testing is the most accurate way to measure alcohol concentration, but accuracy can be affected by factors such as the person’s weight, presence of other substances in the blood, the time since the person consumed alcohol, and the type of BAC test used. 

Under Georgia law, there are multiple ways that a driver can be “under the influence” or intoxicated while driving. O.C.G.A. § 40-6-391. Specifically, it is illegal to drive if you: 

• Have a BAC of .08 percent or higher, 
• Have a BAC of .04 percent or higher while driving a commercial vehicle, 
• Have a BAC of .02 percent or higher and are under 21, 
• Are under the influence of any alcohol, drug, or controlled substance (including prescription or over-the-counter medications) when your use makes it “less safe” for you to drive, or 
• Have any amount of illegal drugs in your blood or urine. 

Note that under the law, you may still be considered intoxicated even if your BAC is below the specified limit. Typically, blood testing for DUI is done by a doctor or nurse, but the situation is different when the driver is deceased. The BAC of a deceased driver may be determined through a postmortem blood alcohol test conducted by a forensic toxicologist.  

Urine Alcohol Concentration (UAC) 

A UAC test may also be used as evidence to prove DUI because the urine concentration can be used to estimate the deceased driver’s BAC and/or detect the presence of drugs. Generally, the concentration of alcohol in urine is lower than in blood because alcohol is metabolized by the liver and excreted in the urine.  

Keep in mind that several factors can affect the accuracy of the estimate, including the time that has passed since death, the body temperature, and the presence of other substances in the urine. For example, if the driver has been dead for several hours, the UAC will be lower than if the body was recently deceased. In other words, time is of the essence if you want an accurate estimate. 

As with a BAC test, the results of a urine test conducted on a deceased person should be analyzed by a forensic toxicologist. 

Autopsy or Toxicology Report 

A forensic toxicologist can help determine the extent to which alcohol or drugs may have contributed to a car accident. When a forensic toxicologist is involved in a case where the drunk driver has been killed, they may be asked to perform an autopsy to collect samples for analysis, including blood, urine, and other bodily tissues.  

The toxicology report will show whether alcohol, drugs, or other chemicals were present in the driver’s system at the time of the crash, and this report can be used as evidence in a civil trial. Depending on the backlog of cases at the medical examiner’s office and the complexity of the case, it can take several weeks to complete the autopsy and toxicology report. 

Open Containers in the Vehicle 

Under Georgia law, it is a criminal offense to have an open container of alcohol in your car, and such a charge can enhance your punishment if you are charged with DUI. Evidence of an open container can also strengthen a civil DUI case against a drunk driver because it helps prove that they were drinking and behaving irresponsibly before the crash. 

The presence of an open container in the vehicle may be noted in the police report, which can serve as evidence at trial. Photos or videos that confirm the open container or statements by eyewitnesses at the scene can also be used to prove the deceased driver violated this law. 

Witness Testimony 

When the drunk driver is deceased, witness testimony can be a key piece of evidence in proving DUI in an injury claim. For example, witnesses who were present at or near the scene could testify that they saw the driver weaving in and out of lanes, speeding, running red lights, or otherwise driving erratically. Witnesses might also have noticed open alcohol containers in the vehicle or smelled alcohol in the car after the accident. 

Witnesses who were not at the accident scene may have observed the driver consuming alcohol or drugs before they drove, whether at a bar, party, or restaurant. They may also have observed signs that the driver was impaired, such as having slurred speech, glassy eyes, or trouble walking. To ensure they can recall important details, your attorney should interview all eyewitnesses as soon as possible after the accident. 

Expert witnesses can also be valuable in a DUI claim because they may provide testimony on scientific or technical issues that are beyond the knowledge of the average person. In a case involving a deceased driver, testimony from a forensic toxicologist and accident reconstruction expert can be critical in understanding what happened. 

Receipts or Transactions Before the Accident 

If the deceased driver purchased alcohol from a bar, liquor store, or other business before the accident, receipts or transaction records can help show how much they may have consumed. Evidence that the driver purchased large quantities of alcohol the day of the crash can be used to prove they were likely intoxicated. Because the business that served the alcohol may be held liable for damages as well, your attorney may need to fight to obtain these records.  

Video or Surveillance Footage 

Video or surveillance footage is always strong evidence because it provides objective and unbiased documentation of what happened, but this type of evidence can be especially important in cases involving a deceased DUI driver. Even though you cannot interview the driver about what they did before the accident, video footage may confirm that the driver purchased alcohol or showed signs of intoxication.  

Video from intersections or nearby businesses may also show them driving erratically before the accident. Your attorney should collect and preserve all video or surveillance footage as part of the accident investigation to build a strong DUI case. 

Why You Should Work Fast After a DUI Accident 

If you were injured in an accident caused by a deceased driver, there is a limited window of time to gather evidence proving the driver was intoxicated. Certain kinds of evidence, such as a field sobriety test, breathalyzer, or eyewitness statements regarding the behavior of the drunk driver at the accident scene, are often not available when the driver does not survive.  

That means scientific tests that show the deceased driver had alcohol or drugs in their system at the time of the accident become even more crucial in building a strong DUI case. Unfortunately, if the necessary testing is delayed too long it may fail to detect alcohol or drugs, which can make it more difficult to prove the accident was caused by the driver’s intoxication rather than mere negligence. 

The length of time that alcohol or drugs stay in your system after death depends on a number of factors, including the amount you consumed before death, your body weight, and the time that has passed since death. In general, alcohol can be detected in the blood for up to 12 hours after death, though it can be detected in other bodily tissues for longer periods of time. 

You or your attorney should make sure that the necessary testing is conducted as soon as possible after an accident where drunk driving is suspected. The more evidence you gather proving DUI, the better your chance of recovering a large punitive damages payout for your injury claim.