The Below Average Defendant: Establishing BAC Evidence in DUI Cases

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1 The Below Average Defendant: Establishing BAC Evidence in DUI Cases Saturday, April 2, 2016 Kevin M. Duffan Shapiro, Appleton & Duffan 1294 Diamond Springs Road Virginia Beach, VA Phone:

2 KEVIN M. DUFFAN is a native of Virginia Beach, Virginia (VA) who earned his BA in Political Science from James Madison University and his Juris Doctor from the William & Mary School of Law. Kevin has spent his entire professional career as a litigator. Kevin has frequently appeared on television, serving as the legal analyst to the ABC network affiliate based in the Norfolk-Virginia Beach metropolitan area, and has provided his independent analysis to the public on a wide variety of legal topics. Kevin has been tapped as a "top 40 under 40" personal injury attorney, has been named as a Super Lawyers "rising star," and has the highest legal rating available to all attorneys from the Martindale-Hubbell Legal rating service (AV). Kevin was previously employed as a Senior Assistant Commonwealth's Attorney in Virginia Beach, and as in-house counsel for litigation at Portfolio Recovery Associates, LLC in Norfolk. Kevin's practice is now focused on plaintiff's personal injury litigation and medical malpractice.

3 The Below Average Defendant: Establishing BAC in DUI Punitive Cases By: Kevin M. Duffan In Virginia, a typical personal injury case resulting from a motor vehicle accident will usually not involve punitive damages. The most frequent application of punitive damages in the context of a personal injury lawsuit is when the defendant was intoxicated at the time of the collision. Proving the defendant s intoxication, both in level and timing, has been the subject of litigation in many punitive damages cases. I. Punitive Damages defined Punitive Damages can be established both under common law and by statute. Under common law, the plaintiff must show that the defendant s negligent conduct (consuming alcohol and then driving, causing a wreck) was so willful or wanton as to show a conscious disregard for the rights of others. Simply showing that a defendant was intoxicated and an accident causing injury occurred is not enough in and of itself to establish the punitive damages, and the case law supporting that proposition is plentiful. See: Doe v Isaacs, 265 Va. 531, 579 S.E. 2d 174 (2003). Basically, common law punitive damages are very fact specific determinations made in each case that they are presented, and if the plaintiff can show a prima facie case of the defendant s conduct being willful and wanton (intoxication plus some other recklessness), it creates a jury question as to whether punitives apply. See Huffman v. Love, 245 Va. 311 (1993). This lecture focuses more on proving statutory exemplary (punitive) damages under , and the defenses presented to toxicology experts that are called to establish BAC at the time of the collision. a. Purpose of punitives/public policy According to the Virginia Supreme Court in Giant of Virginia, Inc. v. Pigg, 207 Va. 679, 686, 152 S.E.2d 271, 277 (1967) Punitive damages are designed to warn others and to punish the wrongdoer if he has acted wantonly, oppressively, or with such malice as to evince a spirit of malice or criminal indifference to civil obligations. Put simply, punitive damages are used primarily to punish and deter. While it makes sense theoretically, in practice the stated goal may not be achieved, as rarely does an intoxicated driver actually suffer the direct financial hit to his or her bank account as a result of a punitive damages award against them (yes, a punitive damages judgment is non-dischargeable in bankruptcy, and occasionally a defendant has sufficient assets to

4 satisfy at least a portion of the judgment, but a defendant directly satisfying a judgment is rare). The criminal DUI punishment is usually the most direct effect that the defendant driver suffers as a result of their negligence. While the deterrent effect of punitive damages may not be real for the defendant, they certainly provide a basis for a plaintiff to recover more in his or her personal injury lawsuit. More often than not, the insurance company providing coverage to the defendant bears the burden of paying out a punitive damages award. While some insurance providers have exclusions relating to punitive damages awards against one of their insured drivers, Virginia Code addresses the public policy regarding punitive damages by stating: It is not against the public policy of the Commonwealth for any person to purchase insurance providing coverage for punitive damages arising out of the death or injury of any person as the result of negligence, including willful and wanton negligence, but excluding intentional acts. Consequently, if there are adequate policy limits provided by the liability or UM/UIM carrier, the plaintiff has a good chance of getting any punitive damages judgement paid. b. Statutory language The Virginia Code section governing exemplary (punitive) damages for persons injured by intoxicated drivers is It states, in relevant part, that when it can be proven the defendant driver had a blood alcohol content of 0.15 or more by weight by volume, or 0.15 grams or more per 210 liters of breath, at the time the defendant began drinking, he knew or should have known his ability to operate a motor vehicle would be impaired (essentially, he knew he was drinking an alcoholic beverage), and the defendant s intoxication was a proximate cause of the injury to the plaintiff. It should be noted that if the defendant unreasonably or unlawfully refuses to be tested under then the same test applies, only that the defendant s intoxication may be established by other evidence concerning his conduct or condition since there is no breath or blood test available. A Plaintiff must prove each element of his case, and the defense to a punitive damages claim will take particular aim at the first element of the test showing that at the time of the accident the driver was at least a II. Defenses to BAC evidence a. Timing is important at the time of the accident vs. at the time of measurement

5 The actual test--whether by blood or breath--that is used to measure a defendant s level of intoxication is necessarily going to occur at some point after the motor vehicle collision that he is alleged to have caused. For this reason, a plaintiff attempting to prove that the defendant was, in fact, over the limit at the time of the collision is going to need to rely upon scientific evidence to support his claim. In almost every circumstance, the plaintiff will need an expert witness to testify to the effects that alcohol has on the body, including evidence about absorption and elimination rates, in order to prove that the defendant was at or over the 0.15 threshold at the time of the accident, regardless of what he may have been at the time of the testing. b. Average absorption and elimination rates and Keesee v. Donigan A more nuanced, but previously successful defense in a punitive damages claim can be found using case precedent set by Kessee v. Donigan 259 Va. 157 (2000). In Kessee, a civil accident trial not involving DUI evidence or punitive damages, the Plaintiff brought in an accident reconstructionist that testified as to the defendant s perception and reaction time as it pertained to his attempt to avoid an obstruction in the roadway. That expert stated that many factors, including a person s physical condition, visual acuity and cognitive abilities all could play a factor in his ability to react to an unexpected highway danger. While the expert mentioned that certain factors could affect reaction times (an older person may have slower reaction times but a top athlete or airplane pilot may have quicker reaction times), for purposes of his testimony the expert attached average reaction times to the defendant and based his report off of that assumption. The Virginia Supreme Court reversed, holding that the trial court abused its discretion in allowing the expert s testimony on this point because the expert had not done any testing to establish that the particular defendant in that particular case fell within the average range of person s tested. Insurance defense attorneys have argued Kessee to make the same point in cases involving expert toxicologists testifying to defendant s absorption and elimination rates. Specifically pointing to Woods v. Mendez 265 Va. 68 (2003), where the Virginia Supreme Court held that proof of a defendant s BAC is not limited to the amount shown by the Certificate of Analysis, and there must an adequate foundation for the opinion evidence offered by the expert. Following Kessee and its progeny, there are been several Circuit Court opinions that have held a Plaintiff s expert cannot base his opinion on population data and averages, but must base it upon data specific to the defendant charged. III. Overcoming the average Defense Due to the mechanics of a DUI investigation, as well as the practical considerations involved, no blood or breath test is going to be administered close enough in time to the collision for

6 there not to be some level of educated guessing involved with calculating the BAC of a defendant at the time of the collision itself. While preliminary breath tests are often administered within the first 30 minutes of the investigation, the blood or breath used for the criminal prosecution (and results of which are also used as evidence in civil punitive damages cases) often come between 2-3 hours after the collision has occurred, so it is incumbent upon the plaintiff s attorney to elicit testimony from a toxicologist that did not simply rely on averages in order to formulate his or her opinion as to the BAC of the defendant at the time of the wreck. It goes without saying that using the specific characteristics of the defendant and the circumstances leading up to the wreck are essential in each case. Information concerning the defendant s height and weight, the amount the defendant had to eat and drink in the hours leading up to the wreck and any other specific factors that may affect BAC should be considered by the expert and included in his or her report. In addition to the above, it is important that if the expert is going to use certain variables in his or her calculation that he use those most favorable to the defendant. In the Dimmick v. Pike case, handled by Neil Cowan, the toxicologist that offered expert opinion in support of the Plaintiff s case for punitives determined a range of probable absorption rates, and then chose values in the outside window of the range and the absolute slowest elimination rate of.01 percent weight-volume per hour. By assuming these variables, he painted a picture in the light most favorable to the defendant, and showed the lower range of possible BAC values the defendant would have had at the time of the collision. The judge in that case found the fact that the toxicologist didn t use averages, but instead used the outside windows of absorption and elimination rates to be persuasive, and denied the defendant s motion to exclude the expert and dismiss the punitive damages claim. IV. New Legislation in SB125 As of the time of this writing, there is a current bill moving its way through the Virginia General Assembly regarding punitive damages for persons injured by intoxicated drivers. As it is currently written, the bill seeks to shore up the fact that in order to have a rebuttable presumption that a defendant s blood alcohol concentration at the time of the incident causing injury or death was at least as high as results of a blood or breath test, such test must have been administered in accordance with the provisions of through , which lay out the procedures for obtaining blood and breath tests. By the presentation of this lecture, the General Assembly session will have closed, and there will be more definitive information to present regarding this bill, and what affect it has on punitive damages litigation if it passes.