Is the "other" driver ever considered to be at fault?

At the accident scene, they test both drivers’ BAC. One is legally intoxicated. That person is now automatically deemed to be 100% the cause of the crash and is liable for all civil damages and criminal penalties that arise from it.

However, the other (sober) driver may easily have been the proximate cause of the crash. He may have been texting, eating a sandwich, swatting his kid, changing the CD player, or performing any one of a number of other activities that impaired his driving more than being intoxicated impaired the other driver’s. Or, he could just have been a lousy driver, or done something stupid that caused the crash.

Does anyone know of a serious auto accident where other factors beside one driver’s intoxication were at all taken into account? Every time I read about such an accident in the paper, the “drunk driver” is crucified. I wonder if we’ve gone a bit overboard on this. My theory is that 99% of all accidents are to at least some extent the fault of BOTH drivers, though obviously not always in equal degree. Does American jurisprudence recognize that intoxication only implies fault?


Been a long time since I did personal injury work, but I don’t remember it working like that in my state. Definitely does not work that way on the criminal side. A roadside breathalyzer does not equal a conviction. It is usually admitted into evidence at trial, but is not the final say on the matter.

There were two cases like that in Santa Fe in recent years.

In the first, a man who was driving drunk hit a car head-on, killing four teenagers. When he came to trial, his attorney argued that the teens were at fault because they had been driving erratically. He was found not guilty. Because prosecutors had chosen not to prosecute him for driving while intoxicated (wanting to avoid the risk of the jury finding him guilty on only that count), he walked away without even a DWI conviction. He’s not likely to get that lucky again, though.

In the second incident, a woman driving a Land Rover hit a van in an intersection, killing a 4-year-old in the van. Witnesses said that the driver of the van ran the red light. The driver of the Land Rover had a .08 BAC. She was charged with vehicular homicide; neither driver was cited. Although the woman who had been drinking wasn’t charged with DWI, she did lose her driver’s license (those hearings are held separately from any criminal proceedings) and the child’s family is suing. The gist of the case is in this news story. The vehicular homicide case has yet to be adjudicated, and the driver is free on bond for the time being. It remains to be seen what a jury will make of the case, but the drunk driver is by no means being considered 100% at fault.

I’m afraid that I could probably find more cases of this sort from New Mexico, but looking for them depresses me, just because there are so very many alcohol-related accidents here.

I’ll try to keep this GQ worthy. NM has very lax enforcement of traffic laws in general. This creates a climate where the sober folks drive nearly as bad as a drunk and often worse, making it hard for the police to spot the drunks. Nationally, alcohol was involved in 31% of traffic fatalities. This means that you could eliminate about 2/3 of traffic deaths by keeping all the sober drivers off the road.

There’s nothing to stop the police from charging the sober at-fault driver for what they did (careless driving) and the other driver with DUI, assuming the facts of the case would point that way.

Of course, the first divers’ defense would be, there would not be an accident if the other driver had obeyed the law and not been on the road. Not sure how that would play out in court. No different than driving without a license, etc. The victim’s cricumstances on the road have no bearing on the act performed by the careless driver.

Also, in some places your own insurance companies won’t pay if you incurred costs/damages while breaking the criminal law - drunk driving, using the car for a bank robbery getaway, etc…

Proof of DUI would work against you in a lawsuit, but it doesn’t automatically make one person 100% at fault. If you rear end someone’s car, whether that person is drunk or not, you have very little chance of avoiding liability.

It would eliminate even more than that, because then there wouldn’t be any sober drivers for the drunk ones to hit. :smiley:

This just isn’t close to being true. There are huge numbers of rear-end accidents every day, where the driver in front most often has 0% of the blame for the accident. Think of traffic jam/slowdown rear end accidents. Those are almost always the fault of only one driver.

It does not have to be all or nothing. On the NJ accident report there is a spot for contributing circumstances for all drivers involved. There is no column for “at fault.”

Yeah I was going to say just this. A rear end is almost always considered the fault of the driver of the car behind, because even if the car in front does an emergency stop, you should be far enough away to brake in time.
So if you rear-end a drunk driver, I think you’ll probably be considered at fault.

I did say 99%, not 100% of the accidents. This is part of the 1%. ALTHOUGH–a driver is supposed to remain aware of all surroundings, even when stopped or slowing down. I have twice averted being rear-ended at stoplights when I looked in my rear-view mirror, saw someone bearing down on me, and moved a few feet forward. Now, obviously, you won’t always have room to do that, but my point is that if you CAN avoid an accident, but don’t, the fault for the accident rests at least partially with you.

My insurance company’s guidelines for at-fault say that if a collision “could only have been avoided by expert driving,” then the one who didn’t expertly drive is not at fault. I disagree with this–we should all have the skill set to be able to drive expertly when the occasion demands.

I suppose it does vary by state. In California, they swoop down with helicopters, pluck you out of your car, take you to prison, and execute you, just for thinking about having a beer while you’re driving. In Oregon, they take your car away (and sell it on EBay, I guess) for being ARRESTED (not convicted) for a DUI. (This is an amazingly unfair penalty since its severity varies according to whether the intoxicated driver was driving a 2012 Lexus or a 1985 Civic.)

I agree that pro forma, the breathalyzer test doesn’t equate to a conviction, but that’s only in the same way that the cop saying you were going too fast doesn’t equate to a guilty verdict on your speeding ticket. Yes, we have to go through the sham of a hearing/trial, but the outcome is a virtual certainty. (And I realize that the occasional person gets off for one reason or another.)

I’m sure that some people reading this thread are thinking that I’m a drinker or have gotten nailed for DUI. In point of fact, I don’t drink at all. I simply think the penalties for driving while intoxicated are unfairly draconian. Part of this, of course, is the hysteria of MADD and headlines that scream “DRUNK DRIVER KILLS 48, HASTENS THE APOCALYPSE, CONTRIBUTES TO GLOBAL WARMING!!!” instead of “Three killed in accident on Hwy 97.”

There are many kinds of impaired driving. The one driver may have been drunk, but the other was eating a cheeseburger and fiddling with the radio. (And if the MADD women had decided to form a different pressure group: Mothers Against Noshing in a Car, or M.A.N.I.A.C., the latter driver would be the one we haul away and burn alive.)

This is not at all true. On the civil side, intoxication is one of the factors used in determining fault, and gray areas will likely go against you. In a head on collision if you say that the other guy crossed the line, but he says you did and he’s sober, but you blew a .28, then you are probably not going to be believed.

However, if you are driving at 55 mph on a two lane road, fully within your lane and obeying all other traffic laws and a vehicles comes left of center and hits you, I can’t see anything above 0% fault for the drunk driver in that situation.