DUI Classic: Practical Pointers For Litigating Personal Injury Cases Involving Alcohol-Related Conduct

By John A. Houghton

John Houghton is eminently qualified to represent the victims of drunk drivers. He has litigated many dram shop liability cases across Georgia. He has conducted CLE seminars for other injury lawyers and is active with MADD Georgia (Mothers Against Drunk Drivers) to help prevent drunk driving and hold third parties accountable for enabling impaired drivers who injure others in crashes.

I. Building The Case

As the party with the burden of proof at trial, there are numerous tools available to the plaintiff’s lawyer in building their case against a DUI defendant. A number of these will likely be second nature to a number of practitioners but are nonetheless vital to properly preparing the plaintiff’s case.

A. Open Records Act Requests

There are many invaluable nuggets of information that can be obtained in a very short period of time following the initial wreck. The Open Records Act request serves as the most efficient and least costly method for obtaining the most damaging evidence of a DUI defendant’s conduct. After the initial client meeting, it is incumbent upon the plaintiff’s lawyer to secure any and all evidence available from the state. Although a few privileges may be asserted by the state during the early stages of the prosecution, the plaintiff’s attorney must be diligent in requesting information from every conceivable entity that played any role in the criminal investigation. (See Appendix for example Open Records Act requests.)

1. Accident Reports/DUI Incident Reports/Breath Test Results

The obvious starting point for the practitioner’s investigation is the Georgia Motor Vehicle Accident Report (or the Crash Report, if Georgia State Patrol is involved). The victim often provides a copy of this, but if not, the attorney should request it from the investigating law enforcement department as soon as possible.

The attorney needs to sit down with a working copy of the Accident Report and use a highlighter pen to note every single item and entity within the report that may have information pertaining to the investigation. Note which statutes the defendant was cited for violating, any statements made by either party, any witnesses that were present and whether county fire and rescue played any role in the aftermath. Additionally, determine whether the defendant was taken to the hospital and/or an EMS unit was involved, and note the respective insurance carriers of the parties.

When a DUI is charged, there are usually additional reports not initially disclosed with the Accident Report or Crash Report. Often, a “DUI Incident Report” can be obtained from the investigating law enforcement department. This record provides considerably more information about the defendant’s conduct following this type of incident than the standard accident report. DUI Incident Reports will usually provide the breath test results or the defendant’s refusal to submit to such testing. The report offers a much more detailed explanation of the facts justifying the officer’s decision to charge the driver with a DUI.

Despite the general inadmissibility of these reports as an exhibit at trial, they provide the essential backdrop for the officer’s direct examination testimony and are vital to refreshing the officer’s recollection of the defendant in question. In cases involving particularly inflammatory conduct by the defendant following the wreck, these reports load the testifying officer with heavy ammunition for the jury.

2. 911 Audio CD/CAD Report

One of the most important items obtainable through an Open Records Act request is the 911 audio files. These are admissible as “res gestae” under Georgia law and allow a unique opportunity to take the jury to the scene of the incident. See O.C.G.A. § 24-3-3/See Moore v. State, 217 Ga. App. 207, 210 (1995).[1] The audio files often contain admissions by the defendant, information from scene witnesses not listed in the accident report and good damages testimony. Additionally, the 911 audio files sometimes contain recordings from other motorists calling in to report swerving or other similar conduct by the defendant before a wreck.

Along with obtaining the 911 audio files, you should be able to get the computer-aided dispatch (CAD) report generated for the wreck. The CAD transcript should have the name and phone number of all witnesses who called 911 to report the wreck. The witnesses listed on a CAD report are often not found in the Georgia Motor Vehicle Accident Report or Crash Report.

It is imperative that the attorney obtain the 911 audio files and CAD report at the earliest possible time in the representation. As a practical matter, the first attorney who gets this information has a jump-start in getting to the witness. A good rule of thumb is that the first attorney who has the opportunity to meet and build rapport with a witness thereafter “owns” that witness. Furthermore, many sheriff’s offices and county 911 departments purge or destroy their audio recordings after 12 months. This evidence must be preserved for trial and obtained early in the representation.

3. Videotape Footage/Photographs

At the bottom of both Georgia Motor Vehicle Accident Reports and Crash Reports is a box indicating whether photos or video were obtained in the investigation. Ignore this box. Always request photographs and video footage from the investigating law enforcement department, regardless of whether they are indicated on the report. The overwhelming volume of traffic investigations in Georgia makes it impossible for every Accident Report and Crash Report to be perfect. Photographs and dashboard video footage are invaluable to the attorney’s evaluation of the case. Even if the report does not mention any such recording, spend the money on postage and send your Open Records Act request. (Often, dashboard footage is revealed that was not listed in the accident report.)

There are a number of uses for the video. The typical scenario involves a DUI wreck case in which a suit is filed, “simple negligence” in causing the wreck is admitted by the defense, and punitive conduct and damages are disputed. In deposition, the defendant is adamant that they were not drunk at the time of the wreck and claims they only had two or three beers some hours before. After the deposition, scene footage from the arresting officer is obtained.

This video footage may provide substantial visual and audio evidence of the intoxication of the defendant on the evening of the wreck, directly contrary to their testimony in deposition. Often, these videos can reveal slurring, belligerence and other alcohol-influenced conduct. Holding cell videos are potentially available as well after the arrest. Even in a case in which negligence is admitted, such video can be used during the cross-examination of the defendant in the first/compensatory phase of trial. The jury not only must determine the amount of compensatory damages to be awarded in the first phase but also must determine if there is clear and convincing evidence of punitive damages under O.C.G.A. § 51-12-5.1.

In practice, evidence like this often puts the case in a good settlement posture; consider sending a copy of the footage along with a simple demand letter re-requesting the last figure demanded. Even in minor impact wrecks with chiefly soft tissue injuries, these cases can resolve for many times the special damages with the right scene evidence.

Photographs taken by law enforcement can similarly provide evidence contrary to the defendant’s claims of sobriety. Beer cans, filled ashtrays and empty liquor bottles can give the jury a feel for the party-like atmosphere that contributed to the incident.

Always send Open Records Act requests, photographs and video footage in every case.

4. Prior DUIs/Crimes of Moral Turpitude/Felonies

A defendant’s motor vehicle history cannot generally be obtained from the Georgia Department of Driver Services without the defendant’s consent or a subpoena. However, information concerning the defendant’s criminal history can be obtained piecemeal through Open Records Act requests. As an initial starting point, consider sending an Open Records Act request to Superior, State, Magistrate and Municipal Courts for the county and city in which the defendant resides. Request certified copies of convictions for any and all prior felonies, misdemeanors or other crimes for the named defendant at their current address. Additionally, send a similar request to the defendant’s local sheriff’s office and police department requesting any and all incident reports, arrest records, charges or other investigative documents for the defendant at their current address. (See Appendix for examples.)

The most valuable prior criminal evidence in the context of an alcohol-related wreck is previous DUI convictions. Evidence of these certified convictions are admissible in the punitive phase of trial. See Holt v. Grinnell, 212 Ga. App. 520 (1984). A history of numerous DUI convictions is the definition of “conscious disregard of the consequences” under O.C.G.A § 51-12-5.1; introduction of such evidence in the punitive phase enhances the inflammatory nature of the defendant’s conduct. It will be clear to any juror that this defendant is simply “not getting the point.” This is the precise type of conduct contemplated under O.C.G.A § 51-12-5.1 that justifies awarding exemplary damages.

Additionally, prior felonies or other recognized crimes of moral turpitude in Georgia can be used under certain circumstances for impeachment purposes in the first phase of trial. Issues such as the defendant’s level of intoxication, the severity of the impact or a dispute over the cause of the wreck makes the defendant’s credibility vulnerable to impeachment under O.C.G.A. 24-9-84.1; see also Pope v. Fields, 273 Ga. 6 (2000). Similarly, the defendant’s untruthfulness in deposition about their criminal history can additionally subject them to impeachment for statements contrary to fact under O.C.G.A. § 24-9-82. See also Hightower v. General Motors Corp, 255 Ga. 349 (1986).

Do not wait for “lawyered-up” responses to your discovery requests. Use Open Records Act requests to get an independent understanding of the defendant’s criminal history as soon as possible.

B. Freedom Of Information Act Requests

In commercial vehicle wreck or tractor-trailer cases, a similar battery of Freedom of Information Act requests should be sent to the Federal Motor Carrier Safety Administration (FMCSA) to obtain as much information about the carrier and the driver as possible. (See Appendix for examples.) Any commercial vehicle with a Department of Transportation (DOT) number will have a history on Safersys.org; federally reportable wrecks involving commercial motor vehicles will generally have a post-crash report. Even if no alcohol-related citation was issued to the defendant driver by the investigating officer, determine if there was any subsequent report by a Motor Carrier Compliance Division officer of the Georgia Department of Public Safety (DPS). The findings may surprise you.

C. Insurance Letters Of Representation/Spoliation/Find The Car

The purposes of a letter of representation to the defendant’s insurance carrier is threefold and familiar to most that practice in this area:

1. Determine amount of coverage

2. Get an understanding of any alleged coverage exclusions; request the entire policy

3. Request preservation of the defendant’s car

Depending on the time frame in which you are retained, it may be best to file suit immediately and gather this information in discovery. With a quickly approaching statute of limitations, filing suit and effecting service needs to be the first priority. A spoliation letter should be sent as well, requesting preservation of the vehicle (which may be futile late in the process). (See Appendix for example letters.)

In cases of severe/catastrophic injury or death and considerable insurance coverage, consider purchasing the salvage of the defendant’s vehicle. The biggest obstruction is usually finding the vehicle if you were retained late in the process. Contact the tow yard and get information about where the vehicle was sent. Send letters, serve subpoenas, drive by the tow yard. Finding the vehicle will, at a minimum, give you the ability to inspect and photograph it; being able to produce the actual vehicle to the jury will give it the unique opportunity to view the “weapon” used in committing this violent crime.

II. Working With The State/Pending Prosecution

A. Law Enforcement

Cases involving DUI wrecks involve considerably more law enforcement officers than a normal road wreck case. With the excessive volume of criminal and traffic cases that each law enforcement officer investigates, it is important to try and contact these key witnesses directly. Call them and try to meet with them in person to discuss their investigation. Even if the officer’s conclusion in the accident or incident report is counter to your theories of liability, you will make great headway by sitting down and discussing their investigation with them.

The creation of a personal relationship will pay dividends in their deposition and at trial. In the numerous venues around the state, many “law and order”-minded jurors naturally attach immediate credibility to the witness with the American flag on their sleeves.

A smart practice is to avoid the use of subpoenas and impersonal letters as much as possible, as these efforts tend to irritate the officers. From their perspective, the law enforcement officer’s primary objective is aiding the criminal investigation and prosecution, not any parallel civil action. Contact the police station or state patrol post and politely let them know you would like to get in touch with the investigating officer to discuss the case. The plaintiff’s lawyer should work with the officer’s schedule and always be exceedingly accommodating. Building rapport is central to developing these witnesses, and the lawyer should always convey his understanding of the officer’s demanding job.

B. Pending Prosecution Privilege

If you are retained in the early stages of the state’s criminal case, you will likely encounter the frequently asserted privilege of pending prosecution under O.C.G.A. O.C.G.A. § 50-1 8-72(4). In felony cases involving homicide by vehicle (O.C.G.A. § 40-6-393) or serious injury by vehicle (O.C.G.A. § 40-6-394), the prosecution tends to take a much longer time before adjudication.

The victim’s lawyer needs to try and reach out to the assigned prosecutor during this time period. Similar to approaching the officer or witness, try to reach out to the assistant district attorney (ADA) or solicitor with a phone call before covering them up with letterhead. Obviously, these folks are some of the most overworked attorneys in the state, and a polite follow-up letter may be required if you cannot reach them by phone.

Convey your client’s interest in testifying in the case, but cautiously avoid any suggestions of improper information exchange or quid pro quo. Get an understanding of the case’s status, and find out about any upcoming probable cause or plea hearings. As in all aspects of law practice, building rapport is vital with the prosecution, and, often, critical information can be gleaned by the victim’s lawyer in a couple of friendly conversations with the prosecutor. The icy “pending prosecution” Open Records Act responses can often be circumnavigated by a face-to-face conversation with the ADA about the contents of the prosecution file. Without getting too clinical or playing as too much of an advocate, subtly communicate the extent of your client’s injuries from this wreck. The objective is securing a prosecutor who will ultimately serve as an advocate for the victim in obtaining a guilty plea to the DUI charge.

It is also important to inquire about the county’s victim-witness advocate and get your client to reach out to their assigned advocate. The victim-witness advocate serves as a liaison between the prosecutor and the victim. It is important to maintain consistent contact with the victim-witness advocate throughout the criminal prosecution. This relationship is helpful in reminding the prosecution of the victim’s position in the case. The advocate also provides a comforting presence to the victim in the face of a contentious criminal case.

C. Attend The Plea Hearing/Bring Your Own Court Reporter

The plea hearing is a good opportunity to obtain critical punitive testimony from the defendant. It is important for the victim’s attorney to attend this hearing and obtain a transcript if the defendant waives their Fifth Amendment right against self-incrimination. The court’s clerk should be called two weeks in advance to determine if there is an assigned court reporter for plea hearings. Frequently, no such reporter is present for takedown, and hiring a stenographer to attend the hearing is an excellent investment.

It is common for the court, criminal defense lawyer or even prosecutor to tell the plaintiff’s lawyer that testimony from the defendant is unlikely. The victim’s lawyer needs to make arrangements for securing a transcript of the proceeding regardless of the likelihood of the defendant testifying. In cases where the opposing lawyer or adjuster is denying alcohol-related conduct, facts and witnesses who can change the dynamic of the case often come to light in these hearings. The victim’s attorney must be diligent in their efforts to closely follow the parallel criminal prosecution throughout their representation.

III. Discovery Considerations

A. Avoid Lawyered-Up Discovery Responses/Take The Deposition

A common approach embraced by many plaintiffs’ lawyers is to send out standard interrogatories and requests for production of documents in every personal injury auto case. While the need to obtain basic information about the defendant is certainly important, this “basic information” is always clouded with boilerplate objections. The information surrounding a DUI is well-guarded, and interrogatories give defense counsel more opportunity to fine-tune their version of the story. It additionally provides the defendant with a better ability to anticipate and prepare for questions asked at deposition. Lawyered-up discovery requests receive lawyered-up responses.

Consider noticing the deposition of the defendant for 45 days from service of the complaint. In cases involving DUI or alcohol-related conduct, take the deposition cold with no prior discovery responses. Determine each and every place or establishment that the defendant was at prior to the wreck. Figure out each person the defendant had any interaction or communication with on the day of the wreck, and get their phone numbers, if possible.

Sculpt your discovery requests and interrogatories around the information gleaned in deposition. Send non-party requests to each bar or restaurant attended by the defendant on the night of the wreck, requesting records of credit card transactions. Use the deposition as the launching pad for your discovery efforts.

B. Fifth Amendment Objections/Adverse Inference

A common scenario involves a DUI defendant whose criminal case has not been adjudicated; plaintiff places defendant under subpoena for a deposition during the pendency of the prosecution. Regardless of the status of the criminal prosecution, the plaintiff has a right to take the defendant’s deposition. See Dempsey v. Kaminski Jewelry, 630 S.E.2d 77 (2006); see also Tennesco, Inc. v. Berger, 144 Ga. App. 45, 48 (1977).

These depositions are generally littered with Fifth Amendment objections in light of the criminal charges pending against the deponent.

This set of circumstances presents an excellent opportunity for the plaintiff to ask questions concerning the defendant’s conduct on the day of the incident. Ultimately, the plaintiff will get the benefit of having a jury draw an “adverse inference” or presumption that the Fifth Amendment response would have revealed information detrimental to the defendant. Matter of Redding, 269 Ga. 537, 501 S.E.2d 499, 500 (1998). The defense is permitted to attempt and rebut this presumption at trial. However, any alternate explanation for this deposition testimony leaves the defendant’s credibility vulnerable to attack.

C. State’s Toxicologist Equals Plaintiff’s Expert

In cases of serious injury or death in which the DUI defendant submits to a post-arrest blood test, the Georgia Bureau of Investigation (GBI) forensic toxicology department usually generates a detailed report of the results. State forensic toxicologists are excellent resources for your DUI case. The GBI toxicologists, unfortunately, are overworked, understaffed and underfunded, so it may take a little time before you get the results.

However, depending upon the results, notice the toxicologist’s deposition as soon as possible following the completion of the report. Even in cases where liability is admitted and there is already good scene evidence of the defendant’s intoxication, the toxicologist’s testimony can be invaluable. The state toxicologists are quite knowledgeable on the varying effects of alcohol and other intoxicating substances on the human body. In cases involving drug use, the jury benefits from the toxicologist’s description of these impairing effects; the toxicologist assists the jury in understanding the dangerous decision made by the defendant.

Like any expert, it is imperative that the plaintiff’s lawyer lays the proper foundation for such testimony and gets a firm understanding of the education, training and experience upon which the toxicologist predicates their conclusions. A good rule of thumb is to try and find out any medical or scientific literature that the toxicologist relies on in reaching their conclusions. Consider purchasing these books or studies, and do your best to learn the basics prior to examining the toxicologist. The deposition becomes much easier to navigate when having a good handle on the terminology.

While the toxicology report is heavily laden with number ratios and scientific jargon, the author of the report will provide a human element in explaining the dangerous effects of these substances to the jury. In short, the state’s toxicologist enhances the credibility of the plaintiff’s case at trial.

IV. Jury Charges

The following are some helpful charges to consider in your next civil trial involving a DUI defendant.

A. Punitive Damages

Willful and intentional conduct is not essential to recover punitive damages, because where the facts and circumstances of the tort show an entire want of care, such conduct gives rise to a presumption of indifference to the consequences, i.e., wantonness, which is sufficient to support an award of punitive damages. Driving under the influence of alcohol constitutes such wanton conduct that it was both intentionally willful and evinces such entire want of care as to be wanton because it placed others at great risk of injury or death.

• Langlois v. Wolford, 246 Ga. App. 209, 210-211 (2000)
• Brown v. StarMed Staffing, 227 Ga. App. 749, 755(4), 490 S.E.2d 503 (1997)
• Hoffman v. Wells, 260 Ga. 588(1) (1990)
• Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 175(2) (1987)
• Moore v. Thompson, 255 Ga. 236, 237, 336 S.E.2d 749 (1985)
• Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994)

B. Fleeing The Scene

The act of leaving the scene of a collision without even speaking to the other person involved gives rise to the reasonable inference that flight was from a sense of guilt. Flight also gave rise to the inference that the defendant sought to conceal the odor of alcohol on their person and intoxication, which even the brief encounter required by law would have revealed.

• Langlois v. Wolford, 246 Ga. App. 209 (2000)
• Parker v. State, 232 Ga. App. 609, 611(1), 502 S.E.2d 310 (1998)
• Agony v. State, 226 Ga. App. 330, 331, 486 S.E.2d 625 (1997)

C. Other DUI Convictions

Evidence of pleas of guilty to subsequent DUI offenses is admissible. Evidence that the defendant “did harm someone, and still kept driving drunk repeatedly thereafter” demonstrates their conscious indifference to the actual consequences of their drunken driving and sheds light on the intention existing when this tort occurred.

• Cheevers v. Clark, 214 Ga. App. 866 (1994)
• Moore v. Thompson, 255 Ga. 236, 237 (1985)

D. Burden Of Proof For Punitive Damages

Punitive damages may be returned by a jury only if proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression or that entire want of care that would raise the presumption of conscious indifference to consequences. “Clear and convincing evidence” is considered in this state to be “an intermediate standard of proof.” It is a standard of proof that is greater than the preponderance of the evidence standard ordinarily employed in civil proceedings but less than the reasonable doubt standard applicable in criminal proceedings.

• O.C.G.A. § 51-12-5.1(b)
• Cotton v. Clarke Communications, Inc., 207 Ga. App. 883 (1993)
• Santosky v. Kramer, 455 U.S. 745, 756(II) (1982)

V. Conclusion

One of the more valuable adages to remember when preparing from the plaintiff’s side is the notion that a case ready to try is a case that will receive value from the insurance carrier. This is not merely the idea that a plaintiff lawyer needs to posture to obtain value from the insurance company; rather, it is the full commitment of the attorney to the trial of the case and the complete ignorance of any suggestion to the contrary (subject to the client’s settlement authority).

The opposite of this notion creates the opposite result. If you prepare your case to settle – by allowing delay, by acquiescing to the suggestion of extensive settlement discussions, by embracing the mindset that the case will never see a jury – you are highlighting your vulnerability to the other side. Such a mindset leads to compromised value of the case instead of a full cup of justice for the client. Such a frame of mind also leads to the trial of a case by an unprepared lawyer.

Every step in preparing your DUI injury case should be made toward getting it to a jury. Every case is an investment of time and resources. Make the investment and win your case.

[1] Also likely admissible as excited utterance: Cook v. State, 273 Ga. 574, 575.

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