2006 Code of Virginia § 8.01-44.5 - Exemplary damages for persons injured by intoxicated drivers

8.01-44.5. Exemplary damages for persons injured by intoxicated drivers.

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

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

However, when a defendant has unreasonably refused to submit to a test of hisblood alcohol content as required by 18.2-268.2, a defendant's conductshall be deemed sufficiently willful or wanton as to show a consciousdisregard for the rights of others when the evidence proves that (i) when theincident causing the injury or death occurred the defendant was intoxicated,which may be established by evidence concerning the conduct or condition ofthe defendant; (ii) at the time the defendant began drinking alcohol, orduring the time he was drinking alcohol, he knew or should have known thathis ability to operate a motor vehicle was impaired; and (iii) thedefendant's intoxication was a proximate cause of the injury to the plaintiffor death of the plaintiff's decedent. A certified copy of a court'sdetermination of unreasonable refusal pursuant to 18.2-268.3 shall be primafacie evidence that the defendant unreasonably refused to submit to the test.

(1994, c. 570; 1998, c. 722; 1999, c. 324; 2002, c. 879.)