HB27: Driving under influence of alcohol; exemplary damages for persons injured.

HOUSE BILL NO. 27
Offered January 11, 2006
Prefiled December 7, 2005
A BILL to amend and reenact § 8.01-44.5 of the Code of Virginia, relating to exemplary damages for persons injured by intoxicated drivers.
Patrons-- Bryant and Griffith

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1.  That § 8.01-44.5 of the Code of Virginia is amended and reenacted as follows:

§ 8.01-44.5. Exemplary damages for persons injured by drivers who are malicious, or willful and wanton, or intoxicated.

A. In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff or the plaintiff's decedent if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others.

B. A defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff plaintiff's decedent.

C.However, when When a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, a defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle was would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff's decedent. A certified copy of either a court's determination of unreasonable refusal pursuant to § 18.2-268.3 or the record of a conviction upon a plea of guilty to a violation of § 18.2-266, § 18.2-36.1, or § 18.2-51.4 arising out of a prosecution for both the unreasonable refusal and the charge to which he pled guilty shall be prima facie evidence that the defendant unreasonably refused to submit to the test.