An Expert Look at Drunk Driving Accidents

In this podcast episode, Josh and Aaron discuss drunk driving accidents. Listen in to hear about how FVF truly advocates for our clients by investigating drunk driving crashes and learn what to look for in a drunk driving accident lawyer.

FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

Introduction: Thank you for tuning in to Summary Judgment, where Austin Personal Injury Attorneys, Josh Fogelman and Aaron von Flatern of FVF Law discuss the ins, outs and in-betweens of personal injury cases.

Aaron Von Flatern: And welcome back to Summary Judgment. I’m Aaron von Flatern, and I’m here with my law partner, Josh Fogelman. We are FVF Law and we are happy to be bringing you a new topic today on drunk driving crashes. Josh, let’s just jump right into it. So we call them drunk driving crashes, a lot of people search for the word “accident” when they’re looking for information on this stuff. Tell me why do we call them crashes to start with?

Josh Fogelman: Yeah. Accidents sort of implies some degree of innocence. And one of the things that people really need to understand is, drunk driving is not an accident. Drunk driving is a conscious decision that puts people in harm’s way. So it’s just a little bit of a misnomer to refer to it as an accident to begin with. And drunk driving accidents in the law also sort of have a special… There’s a special type of procedure and a special type of law that attaches to drunk driving accidents that separates them from other types of car accidents. I’m going to talk a little bit about that.

Anytime somebody gets hurt by the carelessness of another, the law allows the person who’s been harmed to seek recovery of what we call compensatory damages. And that’s just a simple way of saying, damages or some sort of monetary assessment that is designed to compensate the person for the harms and losses they have suffered and will likely continue to suffer into the future. And when I’m talking to clients, I usually like to break down compensatory damages to basically two different categories.

On the one hand, you’ve got what we call your economic harms and losses. And those are things that you could account for on a spreadsheet. The most common examples of economic damages or economic losses are going to be things like medical expenses and lost earnings. Things that are fairly easy to calculate if you really sit down and try and figure it out, even into the future. On the other hand, you have what are called non-economic damages or non-economic harms and losses.

And those are kind of the intangible losses that come with an injury, particularly a long-term injury that impact a person’s quality of life. And the most common types of non-economic damages that we talk about are things like pain and physical impairment. Not being able to live your life to the fullest like you were able to prior to the injury.

In drunk driving crashes, the law opens up an entirely new category of damages that are called punitive damages. And they’re called punitive damages because they are not designed to compensate a person who’s been harmed for those harms and losses, but they’re instead designed to act as a civil penalty against the bad actor in order to deter that person from engaging in similar conduct like that in the future. And so in order to really properly advocate for a person who’s been victimized by a drunk driver, who’s either been seriously injured by a drunk driver or who might have lost a family member or a loved one as a result of a drunk driver’s recklessness, which unfortunately happens all too often in the state of Texas.

It’s really important to investigate the drunk driver’s conduct, establish what they were doing, where they were doing it, when they were doing it, and how intoxicated they were. Preserve all that evidence and really put forth a strong claim of reckless conduct, so that you can trigger the potential availability of those punitive damages to really maximize your client’s recovery, to make sure that they’re properly represented.

And Aaron, one of the things that we oftentimes run into when we’re evaluating and investigating drunk driving accidents, we encounter quite a few hurdles. I would love to hear your input for our listeners about how we go about investigating drunk driving crashes.

Aaron Von Flatern: Yeah, the investigation is so critical. The police, oftentimes, will stop at a point because they have to prove the intoxication case in a criminal court beyond a reasonable doubt. And sometimes they just don’t have enough information to actually make that call or get a jury to buy into it, and so they’ll leave an investigation open ended, that we will have to pick up.

What I start with is, of course, witnesses, right? So the 911 audio frequently has witnesses describing the case and leaving their name and number where we can follow up with those people and say, “What did you see at the scene? And what did this person… Did they have an odor on them? Were they slurring their speech? Were they walking funny? Did they mention where they were drinking? Were there beer bottles inside the vehicle?”

We start with this sort of basic, just learn everything we can. The other side of that is when there is a criminal investigation, when the police are pursuing that intoxication case. Oftentimes, we can’t get our normal public information requests to be fulfilled until the criminal investigation is over under Texas law. And so a lot of times we have to sit there and wait without the benefit of the patrol unit audio, the police officer’s audio from his or her vest, the body cam video that we sometimes have in Travis County.

We don’t get any of that until much later in the case. And so in the meantime, we’re doing the old fashioned calling around witnesses, calling shops, trying to get credit card receipts and litigation, trying to follow up on where this person was drinking, how much they consumed, and who they talked about it with. Looking at Facebook postings that they put onto Instagram that night, sometimes will criminalize them.

So, a lot of loose ends to run down, but it’s so critical, as you mentioned, when you’re dealing with this idea of punitive damages. Because in Texas, you can’t just point to someone and say “That person did something really bad, so we should get a lot of money.” In Texas, the bar is extremely high. You have to prove an extreme risk and that somebody, with conscious indifference, ignored that risk, to the detriment of the right, safety and welfare of others.

And it used to be even harder when jurors would put themselves in the shoes of the drunk driver and say, “Hey, you know, I’ve had a night where I shouldn’t have been driving, and… ” But now, I think with the Uber and Lyft availability, here in Austin, at least, we’re seeing jurors who are saying, “Wait a second, there is no excuse for putting my family at risk, our community, kids out in the street at risk, just for something that’s self-indulgent.” I think you and I share a lot of passion about these cases, and they’re kind of fun for us to investigate, but ultimately, there’s a lot of harm in these cases too.

Josh Fogelman: Yeah, and I have to tell you, there’s not a lot in the practice of law that’s more frustrating than having a family whose lives have been up ended by a drunk driver, and having to look them in the eye and say, “Hey look, we can normally go to the city and send an open records request and get 911 call recordings, we can get body cam footage, we can get witness statements, we can get all sorts of information that’s normally readily and easily available to us, but we are not going to be able to get any of that information for you, until the criminal aspect of the case is resolved.

Because there’s just a little bit of an exception in the Open Records Act that requires cities and other governmental agencies to basically stonewall our investigation efforts until that criminal case is resolved, which can sometimes take years.” So we oftentimes find ourselves trying to utilize creative strategies to learn the information that we need to learn.

I can’t tell you how many times I’ve gotten on the phone with the drunk driver’s criminal defense lawyer and tried to work cooperatively with them to secure some of the information that we might need in order to properly assess and evaluate, and move the case forward so we don’t just get stuck in this limbo while we’re waiting for prosecutors to move the criminal case forward. And one of the big pieces of information that we’re always looking for when we’re investigating a case is, where was the drunk driver drinking so that we can potentially try to identify whether or not there’s a DRAM shop claim. Aaron, can you kind of tell our listeners what a DRAM shop claim is and how they work?

Aaron Von Flatern: Yeah. Let’s start with this idea of frustration. I mean, there’s frustration after frustration in prosecuting these cases, and one of them is that, like you said, there’s not enough information from the public authorities. Another issue is, the drunkest drivers sometimes have the least insurance. And we have to go looking for other possibilities to compensate a family, who oftentimes have been catastrophically affected by one of these cases. And so one of the better routes for us is to identify a bar that’s overserved this person. That information is not readily available.

Occasionally, I’ve gotten information from the tow truck driver who drove the drunk guy to whatever location, or drove our client, I’m sorry, to the next location and mentioned “Hey, I heard the guy mentioned that he got his alcohol at such and such location.” And then we’ve been able to follow up on a case where we didn’t have enough insurance to compensate the family, but we did have a big national chain on the hook, who it turns out had video of this person getting sloppily drunk in their establishment, and they paid heavily to resolve that case with us after we had fully investigated it.

So digging on. The DRAM shop is just another word for a bar. And DRAM shop liability here in Texas is a special statutory based cause of action or statutory based lawsuit that the legislature authorized. A long time ago, you couldn’t sue a bar, because only the drunk driver’s conduct could be blameworthy under Texas law. So now we’ve got this exception, we can pursue a bar, but it is tricky and it requires digging on credit card receipts. A lot of times, we just have to get into litigation and try to get the bars to tell us what they know and what evidence they have.

Josh Fogelman: Assuming that we can actually find out who that bar was in some sort of a timely fashion. And along those lines, Aaron, can you… Sometimes we have people who have been harmed, they’ve got a bunch of medical bills piling up. They’re going to be out of work because they’ve been harmed by a drunk driver. Texas has what we call the Texas Crime Victims Compensation Act, or the Texas Crime Victims Compensation Fund, which is a resource that’s available for victims of certain crimes. Can you tell our listeners a little bit about that and how that works?

Aaron Von Flatern: Yeah, this is a potentially great resource for people if they’ve been hit by someone who doesn’t have any insurance and they weren’t working for somebody, and they weren’t, maybe, getting drunk at a bar, and they don’t have insurance and then our client doesn’t have insurance, and it just looks like there’s no way to compensate this person, assuming the drunk driver didn’t have any assets to speak of, which is frequently the case. So the only option for that person is to go to this crime victim fund, which has up to $75,000 available here in Texas for out of pocket expenses like medical bills, sometimes lost wages, sometimes travel costs, sometimes therapy, if you need… A lot of drunk driving victims have PTSD.

So there’s quite a bit to be said for that fund and it’s great that we have that. One word of caution though is do not approach that fund without speaking to a lawyer first, because in some sense, it’s a very difficult application to get through. It takes a long time for them to pay out, and then they take an interest in the subsequent litigation if there is any, and sometimes it can be advantageous to delay approaching them, or to approach them first and delay your claim in order to make sure you aren’t leaving money on the table. That sounds like a greedy thing to say, but we’re talking about families that have been devastated. They’re trying to pick up their lives when they can’t work, they can’t parent, and all the stuff that goes along with that. For us, that extra few dollars is extremely important. And we don’t want anyone to miss out on that because they approach the Crime Victim’s Fund at the wrong time.

Josh Fogelman: At FVF Law, we are all about educating people and helping people make informed decisions. Making sure that they don’t feel pressured to take action one way or another. Whether it’s pressured by an attorney or pressured by an insurance company, or otherwise.

But drunk driving crashes really do present a unique set of circumstances, where talking to a lawyer, if you’ve been hurt in a drunk driving crash, can be critically important because there is this whole universe of information out there that should be gathered and preserved so you can do your best and put your best foot forward in prosecuting those claims and securing a recovery. Finding out what happened and making sure you can hold accountable those people who contributed to the crash. Aaron, can you talk about any specifically noteworthy drunk driving crash cases that we’ve dealt with recently that come to mind?

Aaron Von Flatern: Yeah, I think it’s probably a good example. We had one last year that involved a national chain restaurant/bar and an employer function, a company function. Where an employee was driving a company vehicle that was wrapped in the company logo. And proceeded to get profoundly drunk at this company function with his supervisors and the owner of the company.

Then proceeded with the supervisor and owner’s knowledge to get into that vehicle and drive it the wrong way down one of our major thoroughfares here in Austin. And was so drunk, that after the crash was still attempting to operate a vehicle that was plainly inoperable. Trying to hit the gas pedal on a car where the engine was off. This is one of those cases where – and by the way, the impact to our client was very severe. It involved surgery, multiple surgeries, and lifelong injuries.

For us, there was so much to investigate. What did the restaurant/bar contribute if anything? What did the employer contribute? Did the employer even have a duty to control that off duty employee’s behavior in that circumstance? Was there going to be insurance coverage for some of the punitive damages of the claims in the case? The investigation went on for quite a long time and it involved lots of experts. Bottom line, it took us a year to get the police audio and video. And when it came through, it was just scary, frankly scary. To think that our families are out there when something like this is happening.

It made me feel really good about what we do because, say what you will about too many lawsuits, actions like these need to have a negative consequence or they won’t be deterred. We know there are criminal courts that give some consequence to people, but we also know that there are criminal defense lawyers that are minimizing those consequences. So for us, to be here on the civil side, making sure that companies are actually monitoring their employees and doing the right thing, feels really good because it feels like we are contributing something to the community.

Josh Fogelman: Yeah, there’s definitely a lot to unpackage with these types of drunk driving accidents. We really hope that if you find yourself victimized by this that you feel comfortable picking up the phone and calling us. We’re happy to help and give you as much advice as we can. That’s what we’re here for. This has been an episode of Summary Judgment. We hope you enjoyed it. You can find us on Facebook, where we try to keep it interesting. And we’ve got an Instagram account now where you can follow us. Thanks for joining us. We hope you tune back in.