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