05 Jul 2019
If you or someone you love have been involved in a DUI case, there are specific Arizona DUI Victim’s Rights you’re entitled to. If the victim survives the crash they can be left facing obstacles and unforeseen challenges. The cost of medical treatment and rehabilitation can take a toll physically, financially, and emotionally. When victims do not survive a crash caused by an intoxicated or impaired driver, their families can be left trying to pull together the pieces of their lives in the aftermath of such a tragedy. Family members are often left wondering why their innocent loved one was taken away from them in such a devastating manner. Surviving family members may suffer from emotional trauma and financial hardship, among other things.
If you or a loved one has been the victim of an Arizona DUI accident, it is important to understand that you have rights, both in the criminal justice system and through the civil courts. Knowing, understanding, and asserting your rights as a victim, or surviving family member can be fundamental to the healing process.
The commonly used acronym DUI stands for driving under the influence. In Arizona it is against the law to commit an act constituting a DUI. According to Arizona Revised Statute § 28-1381:
A) It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
B) It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state.
C) A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor.
D) A person using a drug as prescribed by a medical practitioner who is licensed pursuant to title 32 and who is authorized to prescribe the drug is not guilty of violating subsection A, paragraph 3 of this section. (A.R.S. § 28-1381.)
Notably, under Arizona law a DUI does not necessarily have to involve the use of intoxicating liquors, but may be the result of using drugs or controlled substances that cause hallucinations or impair a person’s cognitive and, or motor functions. While an intoxicated driver can have used a variety of substances that qualify them for driving under the influence, commonly, at issue in DUI accidents are drivers who are impaired due to alcohol consumption and, or marijuana use.
Driving under the influence in Arizona is crime in and of itself. When an accident is caused by an intoxicated driver and people are injured or killed, the severity of the criminal charges increase, as do the potential punishments the perpetrator faces. Further, the DUI driver may face civil liability to the victim, or their surviving beneficiaries.
As defined by the Arizona Constitution, a victim “means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person’s spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused.” (Arizona Constitution Article II Section 2.1(C).) A DUI is statutorily defined as a criminal act, therefore, individuals harmed as the result of another party driving under the influence are victims of a crime.
The victim of a DUI can be any individual who is harmed by the intoxicated or impaired individual while they are operating or in physical control of a motor vehicle, and may include individuals, such as:
In the event that a victim dies as a result of the accident, then the deceased’s spouse, parent, child, or other lawful representative may assume the role of victim and is afforded the same victims’ as the deceased would have been granted had they survived.
Arizona DUI Victim’s have legal rights as guaranteed by Article II Section 2.1 of the Arizona Constitution. In addition, the Arizona legislature has codified crime victims’ rights in Arizona Revised Statute Title 13 Chapter 40.
As stated in the Arizona Constitution, a victim has the right:
Being the victim of a DUI accident can be devastating physically, emotionally, and financially. As the victim of a DUI accident you may wonder how to proceed to ensure that the intoxicated driver is held liable for their wrongful behavior, and how you, or a loved one, can be properly compensated for the resulting harm. If you were the victim of a DUI accident there are some steps you can take to help ensure your rights are not violated.
After you have been treated for your injuries and as soon as you are well enough, it is important to contact the police department and get a copy of the accident report. This will allow you to review the facts surrounding the accident and make changes if any information is inaccurate. Having an accurate police report can help in establishing consistent factual accounts in a civil trial.
In addition, It is crucial that the victim keep accurate records of expenses incurred as a result of the accident. Expenses can include things such as:
Further, it is important to keep records of how the accident has affected your daily life in terms of accomplishing routine tasks, work, and how you interact with peers, friends, and loved ones.
It is prudent to contact an attorney to help you through this difficult time. An attorney will not only help you to determine what viable legal claims you may have against the intoxicated, or impaired driver, but can also do things like help ensure your privacy. An attorney can also serve as an intermediary so you will not be harassed by the perpetrator. This can especially be the case in instances when the perpetrator sues the victim, a tactic some perpetrators use to intimidate the victim in an effort to get them to drop their civil suits. The most common legal claim a perpetrator will use to sue a victim is slander or libel. Victims should know that truth is an absolute defense to these claims.
Driving under the influence occurs at alarming rate. The Center for Disease Control (CDC) reports that in 2016, over 1 million drivers were arrested for driving under the influence of alcohol or narcotics. The CDC further found that approximately 111 million drivers admitted to episodes of driving under the influence of alcohol in 2016.
In its most recent reports, the National Highway Traffic Safety Administration (NHTSA) found that in the United States almost 30 people die each day as a result of drunk driving accidents, with driving while intoxicated was a factor in 29% of all fatal accidents. When broken down, that means a person is dying approximately every 38 minutes as a result of drunk driving accidents. When totaled for the year of 2017, 10,874 people died in drunk driving accidents. Further, an estimated 290,000 people are injured in accidents with intoxicated drivers each year.
Unfortunately, driving under the influence occurs too commonly and can have grave consequences such as injuring or even killing innocent victims. The CDC estimates that alcohol involved accidents cost more than $44 billion per year.
There are numerous parties who may held liable to the victim of a DUI. These parties include the individual who was operating the motor vehicle or was in physical control of the motor vehicle at the time of the, and, under what is known as the Dram Shop Laws, a licensee that serves or sells alcohol to an obviously intoxicated person or a minor, or a social host who serves alcohol to a minor. (Arizona Revised Statute § 4-311.
Arguably, it had been the policy and law in Arizona that a person or business that had sold or furnished alcohol to a person who later caused a car accident was not civilly liable for any resulting harm that occurred as a result of the intoxicated person’s behavior. (See, Estate of Hernandez by Hernandez-Wheeler for and on Behalf of Hernandez v. Arizona Bd. of Regents, 866 P.2d 1330, 177 Ariz. 244 (Ariz., 1994), See, e.g., Lewis v. Wolf, 122 Ariz. 567, (1979); Profitt v. Canez, 118 Ariz. 235,(1978).)
However, that changed after the 1983 case of Ontiveros v. Borak when the Supreme Court of Arizona held that a tavern owner could be held liable to third parties who were injured by an intoxicated patron. (Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983).) In Ontiveros, the court noted that it is almost always foreseeable that drinking and driving can lead to a car accident, stating “certainly no court can say as a matter of law that there can never be a causal relation between serving liquor to an underaged, incompetent or already intoxicated patron and the subsequent accident in which that patron becomes involved when he or she leaves the premises.(Id.)
While the court acknowledged that “the general rule [in Arizona] is that a defendant may be held liable if his conduct contributed to the result and if that result would not have occurred “but for” defendant’s conduct”, it went on to say that [t]here are some dram shop cases where it would be possible to say as a matter of law that the defendant’s acts did not contribute to the result, and there are other cases,, where cause-in-fact remains a question for the jury.” (Id.) Ultimately, it would be a question for the jury to decide who should be held liable in such cases. The Arizona Supreme Court therefore concluded that other parties “may be held liable when they sell liquor to an intoxicated patron or customer under circumstances where the licensee or his employees know or should know that such conduct creates an unreasonable risk of harm to others who may be injured either on or off the premises.” (Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983).) Thus opening the door for third party liability.
This decision overturned the 1945 year old holding in Collier v. Stamatis, where the court affirmed the lower court’s decisions dismissing a case for failure to state a cause of action when a tavern sold intoxicating drinks to a minor who was later arrested and deemed a juvenile delinquent. It was held that the tavern was not responsible for the subsequent illegal acts of its patrons. (Collier v. Stamatis, 162 P.2d 125 (Ariz.1945).)
In addition to the Arizona Supreme Court recognizing dram shop laws, the Arizona legislature adopted Arizona Revised Statute § 4-301 in 1985. This statute codifies a social hosts’ responsibility and civil liability with regards to serving alcohol.
Subsequently, in 1986, the Arizona legislature enacted two more statutes, Arizona Revised Statute Sections 4-311 and 4-312, which deal with the issue of a licensees’, or business’ responsibilities and liabilities in regards to serving intoxicated patrons and minors, and the limitations of such liabilities. These statutes taken together are what are commonly referred to as dram shop laws. Notably, A.R.S. Sections 4-301 and 4-312 serve to limit liability, while A.R.S. § 4-311 assigns liability and legal presumptions of fault.
Arizona Revised Statute § 4-301 reads:
A person other than a licensee or an employee of a licensee acting during the employee’s working hours or in connection with such employment is not liable in damages to any person who is injured, or to the survivors of any person killed, or for damage to property, which is alleged to have been caused in whole or in part by reason of the furnishing or serving of spirituous liquor to a person of the legal drinking age. (Arizona Revised Statutes § 4-301.)
Significantly, this statute refers only to social hosts’ liability limitations and does not apply to a licensee, or those in the business of serving, selling, or furnishing alcohol. This statute was enacted before the other Dram Shop laws were codified by the Arizona legislature in part to limit the Arizona Supreme Court’s ruling in Ontiveros, which, as noted above, was the first case to hold that a licensee could be held civilly liable for harm caused by an intoxicated patron it had served. (See, e.g. Estate of Hernandez by Hernandez-Wheeler for and on Behalf of Hernandez v. Arizona Bd. of Regents, 866 P.2d 1330, 177 Ariz. 244 (Ariz., 1994).)
Of additional consequence, is that A.R.S. § 4-301 only applies to limit the liability of non-licensee social hosts when they serve or furnish alcoholic beverages to a “person of legal drinking age.” The statute does not apply to protect from civil liability social hosts who serve minors and does not protect establishments who may have not served minors but who were negligent in their storage of alcohol to prevent minors from acquiring it. (See, e.g. Estate of Hernandez by Hernandez-Wheeler for and on Behalf of Hernandez v. Arizona Bd. of Regents, 866 P.2d 1330, 177 Ariz. 244 (Ariz., 1994); Petolicchio v. Santa Cruz County Fair and Rodeo Ass’n, Inc., 866 P.2d 1342, 177 Ariz. 256 (Ariz., 1994); Young Through Young v. DFW Corp., 908 P.2d 1, 184 Ariz. 187 (Ariz. App., 1995).)
Arizona Revised Statute § 4-301 was challenged in Estate of Hernandez by Hernandez-Wheeler for and on Behalf of Hernandez v. Arizona Bd. of Regent, when the defendants claimed that A.R.S.§ 4-301 was implicitly repealed by the subsequent passage of A.R.S. §§ 4-311 and 4-312.
The defendants argued that A.R.S. § 4-312 also limits civil liability for third parties who supplied alcohol to an individual who was later involved in a car crash, and that as a result A.R.S. § 4-312 is in conflict with A.R.S. § 4-301. Defendants therefore claimed that for the court to entertain a case based on a violation of A.R.S § 3-401 they would be usurping the legislature’s function. (Id.) However the court did not agree, noting that absent an express repeal of a statute, courts favor finding union between laws, stating, “whenever possible, this court interprets two apparently conflicting statutes in a way that harmonizes them and gives rational meaning to both.  We can do so here with a construction that both fulfills legislative intent and furthers legislative goals.” (Id.)
The court found that the legislative scheme of the statutes, the plain language of the statues, and the legislative intent all favored finding the statues as complimenting each other. Of further significance is that the plain language of A.R.S. § 4-301 applies to limit civil liability only for social hosts. The court stated, “The statutory immunity granted by § 4-301 applies only when a non-licensee furnishes alcohol to “a person of legal drinking age” and in the case of Estate of Hernandez the defendants were social hosts who furnished alcohol to a minor (Id.)
Thus clarifying the differences and applications for the statues limiting civil liability for third parties furnishing alcohol to an individual who later causes an accident and harm due to driving while intoxicated, such that A.R.S. § 4-301 serves to limit civil liability to social hosts, and not to licensees, and only in instances where the intoxicated driver is an adult, not a minor.
Arizona Revised Statute § 4-311 details in which situations a licensee may be held liable to the victim of a DUI accident for property damage and personal injuries, and in the event that the victim dies as a result of the crash, details licensee liability to a person who is able to bring a wrongful death action pursuant to Arizona Revised Statute § 12-612.
A.R.S. 4-311 states that a licensee may be held civilly liable if the court or jury finds:
While this statute outlines who may be held civilly liable for damages resulting from an intoxicated driver causing an accident, of note is that it still contains limitations in so far as it only applies to licensees. Licensees are establishments that have a valid licensee from the state of Arizona to sell, distribute, or furnish alcohol in some capacity.
Of additional consequence is that this law also contains some limitations to protect licensees, saying in relevant part that “[n]o licensee is chargeable with knowledge of previous acts by which a person becomes intoxicated at other locations unknown to the licensee unless the person was obviously intoxicated.” (A.R.S. § 4-311(B).) A.R.S. defines “obviously intoxicated” in subsection D. “’[O]obviously intoxicated’ means inebriated to such an extent that a person’s physical faculties are substantially impaired and the impairment is shown by significantly uncoordinated physical action or significant physical dysfunction that would have been obvious to a reasonable person.” (A.R.S. § 4-311(D).)
In addition to placing some limitations on the situations in which a licensee may be held accountable for an intoxicated customers subsequent actions, A.R.S.§ 4-311 also makes some assumptions that disfavor the licensee. In relevant part it states that “if it is found that an underage person purchased spirituous liquor from a licensee and such underage person incurs or causes injuries or property damage as a result of the consumption of spirituous liquor within a reasonable period of time following the sale of the spirituous liquor, it shall create a rebuttable presumption that the underage person consumed the spirituous liquor sold to such person by the licensee.” (A.R.S. § 4-311(C).)
In a criminal and civil case, the burden of proof is generally on the party filing the claim to prove that all elements of claim have been met. Thus, A.R.S. § 4-311(C) is important because it shifts the burden of proof to the licensee to disprove that their act of selling intoxicating beverages to an underage person was a cause in any subsequent incident that caused harm to another.
Arizona Revised Statute § 4-312, places limitations on a licensee’s civil liability to victims harmed by an intoxicated driver. It states:
Subsection A is important because it limits who can be a victim of DUI accident, to those who were not “present with the person who consumed the spirituous liquor at the time the spirituous liquor was consumed and who knew of the impaired condition of the person.” (A.R.S. § 4-312(A).) So if a passenger in the vehicle who consumed alcohol with the driver at a bar was later involved in a crash, the passenger’s recourse would be against the driver as they cannot hold the licensee accountable by statute. Although, they could arguably have a common law negligence case against the licensee.
In addition, subsection B extends non-liability to person’s working for, or agents of the licensee who provided the intoxicated individual with alcohol.
Arizona Revised Statute 4-312 Challenged
Arizona Revised Statute § 4-312(B) was challenged in the 1995 case of Young Through Young v. DFW Corp. and was held unconstitutional. (Young Through Young v. DFW Corp., 908 P.2d 1, 184 Ariz. 187 (Ariz. App.,1995).)
The issue in Young Through Young, was whether, contrary to the Arizona Constitution, A.R.S. § 4-312(B) abrogated a victims right to recover damages from a licensee because it limited legal actions to those listed in A.R.S. § 4-311, which required that in order for a licensee to be held liable for damages resulting from over-serving an intoxicated patron, the patron must have been “obviously intoxicated.”
The victim argued that a patron could go to a bar, drink a lot in a short period of time and leave before exhibiting signs of intoxication or impairment, thereby alleviating licensee liability. Another scenario could be like that in Young Through Young were a licensee or its employees could not discern whether a patron was obviously intoxicated because they had no context by which to judge the patrons behavior in so far as they might not have had an opportunity to witness the patron sober, but should have had a reasonable idea that someone had been served enough alcohol to impair their judgment when they drank a lot in a short period of time.
In Young Through Young, the court found that the language of A.R.S. § 4-312(B) did in fact abrogate a DUI victims rights, thereby violating Article 18, section 6 of the Arizona Constitution which states that “[t]he right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.” (Article 18, section 6 of the Arizona Constitution.)
The Young Through Young court notes that in Barrio v. San Manuel Div. Hosp. the Arizona Supreme Court “adopted a test of “reasonable alternatives” for distinguishing between legislative regulation and abrogation. The legislature may regulate the cause of action for negligence so long as it leaves a claimant reasonable alternatives or choices which will enable him or her to bring the action. It may not, under the guise of “regulation,” so affect the fundamental right to sue for damages as to effectively deprive the claimant of the ability to bring the action. (Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, (1984).
The Young Through Young Court, stated:
[T]hat section 4-312(B) fails to afford plaintiffs such as Young a reasonable alternative to the general negligence action recognized in Ontiveros when they are injured by a driver that the licensee knows or should know is intoxicated, but the driver is not “obviously intoxicated” as defined by section 4-311(C). By limiting licensee liability to section 4-311, section 4-312(B) does not merely “regulat[e] the mode, method, and procedure to be followed in pursuing the cause of action … [but] completely deprive[s] many who have sustained real injury of judicial remedy,” (Boswell, 152 Ariz. at 19, 730 P.2d at 196), and imposes the type of “insurmountable defense” constructed by legislative act that our supreme court condemned in Barrio. (143 Ariz. at 106, 692 P.2d at 285).
The court therefore held that section 4-312(B) was unconstitutional because it abrogates the general negligence cause of action recognized in Ontiveros. The court did note that the holding did not include a finding holding that either section 4-311 or its definition of “obviously intoxicated” in subsection C were unconstitutional as neither party raised it as an issue. (Young Through Young v. DFW Corp., 908 P.2d 1, 184 Ariz. 187 (Ariz. App., 1995).)
While A.R.S. §§ 4-301 and 4-312 serve to limit the civil liability of certain parties who furnish or sell alcohol to certain statutorily named and defined individuals, a business may be held liable on other grounds than those outlined under the statutory scheme of the dram shop laws.
In Petolicchio v. Santa Cruz County Fair the issue was whether a licensee was civilly responsible for the death of a minor who was killed in a drunk driving car accident when the driver had routinely stolen alcohol from the licensee and the licensee was on notice of the habitual thefts but did nothing to stop them and prevent the minor from accessing the liquor. (Petolicchio v. Santa Cruz County Fair, 866 P.2d 1342 (Ariz.1994).)
The defendant argued that it was not liable under A.R.S. § 4-311 because it did not actually sell alcohol to a minor. While the court determined that the defendant could not be held liable under A.R.S. § 4-311, because, as it stated:
For dram shop liability to exist under § 4-311, the licensee must sell alcohol to a purchaser who is either intoxicated or under the legal drinking age. Obviously, no such commercial sale occurred here. We do not now address how narrowly or broadly the term “sold” should be interpreted. Suffice it to say again that under any rational meaning of the term, the liquor here was not sold. Defendants were not acting as licensees in this transaction–even unlicensed persons may store alcohol. Moreover, [the deceased] certainly was no purchaser–he was alleged to be a thief. Thus, we conclude that A.R.S. § 4-311 does not apply. (Id.)
However, the court in Petolicchio did go on to find that the licensee could still be held civilly liable for the minors death under a common law legal theory of negligence as established in Ontiveros because the licensee was on notice of the thefts, aware that that the alcohol was being taken and consumed by minors, and had a duty to prevent foreseeable harm. (Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983).)
It should also be noted that there is a different statute of limitations for civil liability in a case based on the common law theory of negligence and the statutory scheme adopted by the Arizona legislature on dram shop liability. An individual filing a claim under the common law theory of dram shop liability has two years from the time of injury in which to file their claim, while an individual filing a cause of action based on the statutory scheme for dram shop liability has a year do so. (See, ANDREWS, EX REL. WOODARD v. Eddie’s Place, 16 P.3d 801, 199 Ariz. 240 (Ariz. App., 2000).)
In ANDREWS, EX REL. WOODARD a woman sued a tavern under A.R.S. § 4-311 and under a common law theory of negligence because the tavern continued to serve an intoxicated patron who later caused a car accident with the plaintiff, thereby injuring plaintiff and her daughter. The plaintiff filed her legal claim within two years of the accident. While the trial court dismissed the case because it said she did not file her statutory claim within the one year statute of limitations, the appellate court reversed the lower court’s decision to dismiss plaintiff’s claim because she had filed her claim, which it noted had common law elements, against the tavern within two years after the accident.
This is a result of some statutory legal claims being held to a one year statute of limitation under Arizona Revised Statute § 12-541(5). However, this statute does not apply to common law liability based on negligence. As the court in ANDREWS, EX REL. WOODARD v. Eddie’s Place, stated “the one-year statute of limitations in § 12-541(5) does not apply. Section 12-541(5) does not “include or extend to actions arising under the common law” but applies only “where a liability would not exist but for a statute.” (Id.)
Dram shop liability does not extend to Indian reservations or casinos on those reservations. In Filer v. Tohono O’Odham Nation Gaming, the Arizona Court of Appeals held that because Indian reservations are a sovereign nation, casinos on their land cannot be held liable for civil actions unless they expressly waive their sovereign immunity. (Filer v. Tohono O’Odham Nation Gaming, 129 P.3d 78 (Ariz. Ct. App. 2006).) This means that an individual who is injured as the result of an intoxicated driver who became intoxicated as a result of being served, or buying alcohol at a casino does not have recourse against the casino because they are operated by the Indian nation on whose land they sit. This immunity extends to employees of the casino who serve alcohol, as detailed in Filer. (Id.)
Driving under the influence of marijuana has become increasingly common and is recognized as a drug that qualifies for a DUI in Arizona. While some may be under the misconception that marijuana does not affect their driving ability, or in some cases, believe that marijuana use actually makes them a better driver, these misguided beliefs are false.
The Center for Disease Control and Prevention (CDC) reported that in 2016 drugs, both illegal and legal, other than alcohol, were a factor in 16% of all crashes for that year. Additionally, data for crashes in 2016 indicate that 38% of people involved in fatal accidents had marijuana in their system. While some of those 38% may have had additional drugs in their system and, or alcohol, research suggests that with increased marijuana use, accidents rates have increased. As wide array of studies have shown, this is in part due to the fact that marijuana decreases cognitive function and a driver’s ability to track lanes, impairs motor skills, reduce a drivers ability to multitask, slows reaction time, and decreases coordination. (See, National Highway Traffic Safety Administration; National Institute on Drug Abuse.)
Recent research by the Insurance Institute for Highway Safety and Highway Loss Data Institute reveals that car crashes are up by as much as 6% in Colorado, Washington, Nevada, and Oregon after those states legalized recreational marijuana, compared with neighboring states that have not legalized marijuana for recreational purposes. Those involved in a car accident with a driver who was impaired by marijuana may have some recourse against the driver under Arizona DUI laws and legal claims based in negligence. (See, A.R.S. § 28-1381.)
The Arizona Medical Marijuana Act (AMMA) was passed by voters in 2010 and was codified as A.R.S. Statute Sections 36-2801-36-2819. While the AMMA broadly immunizes medical marijuana users from prosecution while using the drug as detailed in the Act, in the 2015 case of Dobson v. McClennen the Supreme Court of Arizona held that the AMMA does not immunize from prosecution a driver charged with a DUI resulting from marijuana use under A.R.S. § 28-1381(A)(3), which states in relevant part that it is illegal for any person to operate or be in control of a motor vehicle “[w]hile there is any drug defined in section A.R.S.§ 13-3401 or its metabolite in the person’s body.” (Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374, (Ariz., 2015).) Marijuana is a drug defined in A.R.S. § 13-3401.
The court did say however that the AMMA provides an affirmative defense for the DUI driver using marijuana. It is the drivers obligation to prove that the marijuana or its metabolite in their system was not enough to cause impairment, the Dobson court stated in relevant part:
A qualifying patient may be convicted of an (A)(3) violation if the state proves beyond a reasonable doubt that the patient, while driving or in control of a vehicle, had marijuana or its impairing metabolite in the patient’s body. The patient may establish an affirmative defense to such a charge by showing that his or her use was authorized by the AMMA—which is subject to the rebuttable presumption under § 36–2811(A)(2)—and that the marijuana or its metabolite was in a concentration insufficient to cause impairment. The patient bears the burden of proof on the latter point by a preponderance of the evidence, as with other affirmative defenses.” (Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374, (Ariz., 2015).)
It is important to note that the affirmative defense established in Dobson is only applicable to an A.R.S. § 28-1381(A)(3) charge and not an A.R.S. § 28-1381(A)(1) charge. (Dobson v. McClennen, 238 Ariz. 389, 361 P.3d 374, (Ariz., 2015).) Whether the driver was under the influence of marijuana such that they were “impaired to the slightest degree” will be a question for the jury.
Since this Supreme Court ruling the issue has come up in Arizona Appellate Courts again. One example, is the 2016 case of Ishak v. McClennen when the court of Appeals of Arizona, Division 1 remanded the case to the superior court because the lower court failed to allow the defendant to submit evidence of his AMMA card when he was charged with a A.R.S. § 28-1381(A)(3) violation. (Ishak v. McClennen, 241 Ariz. 364, 388 P.3d 1 (Ariz. App., 2016).)
Of consequence for the defendant is that if an affirmative defense is not asserted in the initial proceeding then it is waived. This affirmative defense only applies to drivers who have a valid medical marijuana card, and not to drivers who do not have a valid card.
One of the issues with the increased use of marijuana and determining how great a role it plays in accidents is that it is difficult to judge if a person was impaired at the time of the crash. Unlike alcohol, which can be measured in a person’s body to a great degree of accuracy at the time of an accident, there are yet to be developed accurate testing methods to determine if marijuana played a role in impairing a driver at the time of an accident. Unlike alcohol which the body metabolizes in a relatively short period of time, marijuana can stay in a users system for weeks or even sometimes a month or more after they use it. Ultimately, in civil cases, the question will be left to the jury to determine whether the driver was impaired in their driving ability and committed a DUI, and, or acted negligently.
Under Arizona law, the parties who may be held liable for a DUI based on marijuana use can include the driver of a motor vehicle, if the marijuana was obtained illegally, then potentially the individual who sold or furnished the marijuana to the individual, and potentially a dispensary in certain situations. An individual who uses marijuana and causes an accident may be held liable under A.R.S. § 28-1381 (the DUI statute), and also under A.R.S. § 13-3405, which makes it illegal for a person to “knowingly possess or use marijuana.” While these are both criminal statutes they can be used in a civil claim to help establish a cause of action in negligence. (See discussion below.)
While there are dram shop laws for alcohol, there are no such laws for marijuana yet. Although A.R.S. § 36-2806(G) states that “[a] nonprofit medical marijuana dispensary shall not permit any person to consume marijuana on the property of a nonprofit medical marijuana dispensary.” This arguably creates a duty for the dispensary that if breached could be actionable under a similar legal theory of negligence as that articulated in Ontiveros v. Borak. However, the case law and statutory law is still developing in this area.
While the laws around marijuana use and driving under the influence of marijuana are still developing, there are certainly enough codified laws and relevant case law to hold an impaired driver accountable for their actions if they cause an accident and harm others when driving under the influence of marijuana.
Under Arizona law, when the perpetrator of a DUI is involved in an accident they may be held accountable in both a criminal and civil proceedings. While a criminal proceeding is conducted by the government, a civil proceeding is undertaken by the victim/survivor, or if death ensues as a result of the crash, then the victims surviving family members. Additionally, as discussed above, in certain situations a social host or a licensee may be held liable to the victims of a DUI accident in a civil lawsuit, and may potentially face criminal proceedings as well.
As discussed below in the negligence per se section, if a driver under the influence causes an accident and is in violation of a criminal law, such a violation and conviction can be used in a civil negligence case to establish the fact that certain requisite elements of the claim have been met. Importantly, even if an impaired driver is not convicted of a criminal offense, a victim still has the right to proceed with a civil cause of action against the driver to seek compensation for their damages.
While sometimes a defendant is found guilty and held accountable in both a criminal and civil case, at other times a defendant may be acquitted of criminal charges but may yet be found guilty of a civil offense. One reason for this is that the burden of proof for establishing guilt in a civil case is less than that which is necessary in a criminal case. So while a criminal conviction may bolster a civil case, an acquittal of a criminal charge does not bar a victim from recovering for their injuries in a civil case.
In a criminal action, the intoxicated driver will be prosecuted by a state appointed attorney whose aim is to punish the perpetrator on behalf of a perceived wrong committed against the state and community at large. While a criminal case is undertaken by the state, it does not mean that the victim/survivor, or surviving family members cannot be involved in the criminal case and that they do not have rights. (See the Victims’ Rights Section above.)
If convicted, the perpetrator may face fines and, or jail time. The degree to which the perpetrator is punished will depend on numerous factors that may include things, such as:
In addition, a licensee who sells alcohol to a minor or anyone who furnishes alcohol to a person not of legal drinking age without their parent or guardians consent, except when the minor is employed to sell alcohol, is guilty of a misdemeanor. (A.R.S. § 4-244(9).)
The charges against the defendant in a DUI case will be discretionary for the prosecuting attorney and may depend upon things like whether the victims in the DUI case were injured or killed, and whether the defendant has any prior convictions. In the event that the victims of the DUI survived the accident, the charges may be lesser and can include aggravated assault with a deadly weapon, a class 3 dangerous felony. In the event that a victim dies as a result of the accident, the prosecutor may charge the intoxicated, or impaired driver with manslaughter, a class 2 dangerous felony.
Significantly, it is crucial to understand that the defendant will be charged for a separate criminal offense for each victim they harm. For example, if the defendant caused a crash resulting in two people being injured, and one person being killed, the defendant will face separate charges for each victim. Such that the defendant may be charged with two counts of aggravated assault and one count of manslaughter. If convicted, this means that the defendant will face separate punishment for each conviction, but which punishment, if including jail time will generally run consecutively.
As discussed above, an intoxicated driver may be charged with various crimes depending on the seriousness of the accident and whether any victims were killed as a result. In many cases, when another human being is injured in the accident, the intoxicated or impaired driver may be charged with a class 2 or class 3 dangerous felony.
Under Arizona law, dangerous felonies carry minimum jail sentences that may be increased depending upon the specific facts of the case and whether the convicted defendant has any prior criminal convictions, and what, if any, those prior convictions were. The sentencing guidelines are statutory and leave little room for interpretation or deviation by the sentencing judge. Felony sentencing guidelines are outlined in Arizona Revised Statute § 13-704. Each felony class carries with it a minimum, presumptive, and a maximum jail time.
A class 3 felony (aggravated assault with a deadly weapon) carries a minimum jail sentence of 5 years, a presumptive sentence of 7.5 years, and a maximum sentence of 15 years.
A class 2 felony (manslaughter) has a minimum jail sentence of 7 years, a presumptive sentence of 10.5 years, and a maximum sentence of 21 years.
Jail time can increase depending upon whether the perpetrator has any prior convictions. One convicted of a class 3 felony who has at least one prior dangerous offense conviction has their sentencing automatically increased to a range of 10 to 20 years, while one previously convicted of a dangerous offense now facing a class 2 felony conviction has their sentencing range increased to a range of 14 to 28 years. With each additional prior conviction the potential jail time increases, until at some point a life sentence may be handed down. (See, Arizona Revised Statute § 13-704.)
In combination with the previous convictions, if the victim was a minor then in some instances the jail time can be increased as well. (See, A.R.S. § 13-706.)
In addition to a criminal prosecution and penalties, an intoxicated or impaired driver may face a civil lawsuit, which is filed by the victim of the DUI, or the victim’s surviving beneficiaries if the victim dies as a result of the accident.
In a civil lawsuit, the victim of a DUI accident has the right to sue the intoxicated driver for any harm they suffered as a result of the accident. In cases where the victim of the DUI accident does not survive, a lawsuit may be filed by certain individuals surviving the victim. This legal action is referred to as a wrongful death action. A victim/survivor, or their surviving family members, may try to represent themselves in a civil action against the perpetrator, however, because of the great complexity of lawsuits it is strongly advisable that they hire a private attorney to represent them in their case against the perpetrator. This will not only allow the victim/survivor, or their surviving family, to focus on healing, but also will help ensure that they are fairly compensated and not bullied by adverse parties.
There are a variety of potential civil law claims under which the surviving victim of a DUI can sue the intoxicated or impaired driver. Some of the most common include negligence and negligence per se. In addition, if the victim of a DUI accident does dies as a result of the crash, then certain surviving individuals may have a wrongful death claim against an impaired driver. For more on wrongful death lawsuits, visit Thompson Law Firm’s web pages addressing Wrongful Death.
In order to prove negligence, four elements must be met. First, it must be established that the defendant had a duty to adhere to a certain standard of care. Second, it must be shown that the defendant breached that standard of care. Third, a causal connection must be made between the defendant’s beach of the standard of care and the resulting injury. Fourth, the victim must have suffered actual damages. (See, Gipson v. Kasey, 214 Ariz. 141 (2007).) Whether a duty exists is a matter of law, while whether a breach of the duty occurred that caused injury and real damages are questions for the jury to decide. (Id.)
The question of duty is whether the relationship between the parties is such that the wrongdoer was under some obligation to the victim to use reasonable care to prevent or avoid harming the victim. (See, Petolicchio v. Santa Cruz County Fair and Rodeo Ass’n, Inc., 866 P.2d 1342, 177 Ariz. 256 (Ariz., 1994).)
In general, it is well established that an individual operating a car or motor vehicle has a duty to others to operate the vehicle in such a way as to prevent foreseeable harm to others. In a DUI case then, the question will be for the jury to decide if the driver breached the duty, did the breach of the duty cause the accident, at least in part, and to what extent did the victim suffer damages.
If the jury finds that the intoxicated driver was negligent thereby causing an accident and harming the victim, it will be for the jury to decide what amount of money to award the victim to compensate them for their resulting damages.
Negligence per se is also be referred to as statutory negligence. This is because the negligence claim is based on the fact the accused violated a statute, which violation resulted in harming the defendant. When a statute is violated it relieves the party who is asserting the claim of negligence from the burden of proving that a duty existed. In this situation, the questions left for the jury are whether the duty was breached, whether the breach caused the damage, to what extent the victim was harmed, and how much monetary compensation the victim is owed.
The statute that lends itself to a negligence per se claim can be civil or criminal in nature. In Estate of Hernandez v. Bd. of Regents , quoting the Law of Torts, the court stated that “a criminal statute may establish a tort duty if the statute is ‘designed to protect the class of persons, in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation….’” (W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 36, at 229-30 (5th ed. 1984) in Estate of Hernandez v. Bd. of Regents, 866 P.2d 1330 (Ariz. 1994).)
For example, in Estate of Hernandez the court relied on Arizona Revised Statute 4-244(9), a criminal statute, to establish that a duty exists for both licensees and social host to refrain from furnishing alcohol to minors without their parent’s consent, stating, “we have previously relied on § 4-244 to sustain a cause of action against those who furnish alcohol to minors. We believe that A.R.S. § 4-244(9) … constitute[s] legislative recognition of the foreseeable danger to both the patron and third parties, and an effort to meet that danger by enactment of laws designed to regulate the industry, to protect third persons, and to protect those who are underage from themselves.” (Id.)
In addition to A.R.S. § 4-244(9) imposing an actionable statutory duty for the offense of serving alcohol to minors, A.R.S. § 4-244(14) imposes liability on licensee who serves alcohol to an obviously intoxicated person. Both of these statues, in addition to the dram shop statute can be used to build a civil case for negligence per se. (See, Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983), relying in part on A.R.S. 4-244(14) to create a civil law cause of action in negligence for a victim who is injured in a car accident when an intoxicated patron drives.)
In a civil case, it is important for a party seeking to hold an intoxicated driver accountable in a civil action to assert a claim based both in negligence and negligence per se. This is so, because as noted above they have different statutes of limitation, and depending on the facts of the case a licensee or social host may try to escape liability through a loophole in the dram shop statutes where the statutes give a defendant immunity but the common law finds a duty of reasonable care owed.
The Evolution of Common Law Joint and Several Liability into Several Liability
In some cases there may be more than one negligent party who contributed to harming a victim. In such cases, previously they may all be held liable to the victim under a theory of joint and several liability.
Under the common law rule of joint and several liability the defendants must have been “acting in concert” to cause the victim harm, or create the circumstances under which the victim was harmed. If it was found that the defendants had acted independently then the victim was not allowed to recover compensation for the harm they suffered from either defendant, even though the defendant’s actions may have caused them harm. A further issue with the common law rule was that while there may have been multiple defendants that contributed to damaging the victim, it could be held that only one defendant had to compensate the victim and such defendant was not allowed to seek contribution from the other defendants, even though they may have been at fault too.
In 1984, the Arizona legislature alleviated some of the harshness of the common law rule by adopting Arizona Revised Statute § 12-2501, which allows for a co-defendant to seek contributions from other defendants “even though judgment has not been recovered against any or all of them” and allowed for the victim to recover even if there were multiple defendants who were necessarily acting in concert but whose independent acts each contributed to the victims’ harm. (A.R.S. § 12-2501.) Under this rule, it may have worked out that only one defendant actually compensated the victim for their resulting harm and was responsible for collecting money from the other defendant’s for their share of the harm inflicted upon the victim. They could get a contribution from their co-defendants in the same action as the original complaint filed by the victim or they could file a separate action against their co-defendants in order to recover the money they paid in excessive of their own liability.
Thus, while Arizona Revised Statute § 12-2501 allowed for multiple defendants to be held liable to the victim thus easing some of the previous restrictions allowing for recovery under the common law rule, it did not account for allowing each defendant to be responsible only for their share of the damage. As a result, one defendant who may have paid the total amount of damages to the victim may not have been able to collect form the other defendants because they were insolvent, or the paying defendant may have depleted their financial resources in paying the victim, thereby not allowing them to pursue a legal action against co-defendants to recover their money.
As a result, again, in 1987 the Arizona legislature passed legislation changing the rules around joint and several liability, this time abolishing joint and several liability in most cases, but leaving several liability in tact as actionable law, and codifying comparative liability. (Arizona Revised Statute § 12-2506, and Arizona Revised Statute § 12-2505.) This allowed the victim to still seek compensation from multiple defendants who may have all contributed to the victims harm, even if they were not acting in concert, and also made each defendant responsible for their share of the harm inflicted on the victim,thereby shifting the responsibility of going after each defendant for their share of the damages to the victim.
In relevant part, A.R.S. § 12-2506 reads:
In an action for personal injury, property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as otherwise provided in this section. Each defendant is liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be entered against the defendant for that amount. To determine the amount of judgment to be entered against each defendant, the trier of fact shall multiply the total amount of damages recoverable by the plaintiff by the percentage of each defendant’s fault, and that amount is the maximum recoverable against the defendant.
The exceptions to the abolition of joint and several liability include when co-defendants were:
A.R.S. § 12-2506 further states that the jury shall be allowed to determine the percentage of fault of each defendant and may consider the fault of parties who may have contributed to harming the victim, but who may not have been a party in the current lawsuit.
A.R.S. § 12-2506 reads:
In assessing percentages of fault the trier of fact shall consider the fault of all persons who contributed to the alleged injury, death or damage to property, regardless of whether the person was, or could have been, named as a party to the suit. Negligence or fault of a nonparty may be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice before trial, in accordance with requirements established by court rule, that a nonparty was wholly or partially at fault. Assessments of percentages of fault for nonparties are used only as a vehicle for accurately determining the fault of the named parties. Assessment of fault against non parties does not subject any non party to liability in this or any other action, and it may not be introduced as evidence of liability in any action.
For example, in Ogden v. JM Steel Erecting, Inc. when the jury found in favor of the plaintiffs, but assigned fault to the parties in the lawsuit, without assigning fault to non-parties, the case was remanded to the jury to assess the proper amount of fault to the non-parties, thereby reducing the fault of the named parties. (Ogden v. JM Steel Erecting, Inc., 31 P.3d 806, 201 Ariz. 32 (Ariz. App., 2001).)
Comparative negligence is a defense that can be asserted by the defendant against the victim in order to decrease their amount of fault for the accident. In essence, it claims that the victim was also at fault for the accident. While comparative negligence can operate to reduce the amount of compensation a victim may receive for the resulting harm they suffered from an accident, it does not bar the victim from recovering monetary compensation, if the jury does in fact find the victim partially to blame for the accident.
Comparative negligence is defined in Arizona Revised Statute § 12-2505, and states:
Significantly, comparative negligence is a question of fact for the jury. As such it is their responsibility to determine whether the victim shared in some fault, or whether the intoxicated, impaired driver was to blame for causing the accident.
As discussed above, the parties who may held liable for the resulting damage to the victim in a DUI accident can include both the driver and a third party, such as a licensee or social host. However, in some situations where a superseding event occurs and intervenes to break the causal connection between the third parties actions and the accident, the third party defendant may be relieved of their liability.
The causal element in negligence has two components, actual cause and proximate cause. Actual cause is present when the defendant’s actions aided in bringing about the final outcome of a situation that would not have occurred but for the defendant’s actions. An act that constitutes actual cause may also satisfy the element of proximate, except in situations where an intervening event supersedes the defendant’s acts, thereby relieving the defendant of responsibility.
An intervening event is one that contributes to the victims injuries, but was not caused by the defendant’s actions. An intervening event supersedes the defendant’s actions if it was unforeseeable by the defendant and is extraordinary in nature. In cases where the damages are the result of the superseding, intervening event, the defendant is not liable because the element of proximate cause is missing. This is even the case if the defendant’s actions may have been a factor in contributing to the resulting harm. (See, Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983).)
For example in Patterson v. Thunder Pass, Inc., upon recognizing that a woman at the bar became intoxicated, a bar employee took her keys and drove her home. When they arrived at her house, the employee gave her keys back. Unknown to the bar employees, the woman went back to the bar 45 minutes later to retrieve her, at which point she proceeded to drive back to her house. Still intoxicated and while driving the wrong way down the street she crashed head on to another car, injuring that driver. The court held that the tavern was not liable to the victim because the employees could not have know that the women would come back that night to retrieve and drive her car. Further, the court noted that giving the women her keys back was not enough to establish liability because once getting her home safely they had no legal right to keep her keys. The event of the woman going back to the bar was deemed an intervening and superseding event which was extraordinary and one the employees could not have foreseen, thereby breaking the causal connection between the bar and the resulting accident. (Patterson v. Thunder Pass, Inc., 153 P.3d 1064, 214 Ariz. 435 (Ariz. App., 2007).) As such the case against the bar was dismissed. Leaving the victim with a cause of action against the driver only.
The surviving victim of a DUI accident may be able to recover compensation for things such as:
If the victim of the crash does not survive, certain surviving family members, known as statutory beneficiaries, may file an action against the intoxicated driver in what is known as a wrongful death lawsuit. Types of compensation that may be available to the deceased’s statutory beneficiaries include:
What Amount of Compensation Can Victims of a DUI Receive
The amount of compensation the victim of a DUI, or their surviving family, may recover will vary depending upon the circumstances of each case. Below of some examples of compensation in Arizona cases.
In Gehres v. City of Phoenix, the victim of the DUI accident, Violet Gehres, died when her vehicle was hit by the perpetrator Lawrence Speck, who also died in the accident and had a blood alcohol level of .27% at the time of the accident. The victim’s surviving daughter and husband brought a wrongful death lawsuit against the estate of Lawrence Speck, Vinnie’s, an establishment where Speck became intoxicated, and the City of Phoenix, whose police officers were pursuing Speck when he crashed into Violet’s car, killing her. The jury found all three defendants liable and awarded the surviving husband and daughter a combined amount of $577,600.
Note that this case went to trial before joint and several liability was abolished so all defendants were technically responsible for paying the judgment. This was the issue on appeal, but the court upheld a verdict for the plaintiffs, since it could not apply the several liability law retroactively. (Gehres v. City of Phoenix, 156 Ariz. 484, 753 P.2d 174 (Ariz. App., 1987).)
Essson v. La Puesta Del Sol Party Facility and AYOUB (2004)
In the 2004 case of Essson v. La Puesta Del Sol Party Facility and AYOUB, the jury awarded the plaintiff a total of $2.6 million, assessing liability to La Puesta in the amount of $2.1 million, to AYOUB in the amount of $500,000. In this case, the victim was a passenger of AYOUB who was driving while intoxicated, after consuming alcohol at event hosted by La Puesta. The victim was killed in a car accident so the lawsuit was filed by his mother, who was awarded the judgment.
Shalley v. A & M Beverages dba Mecca Lounge, McConaha, and Sainsevain (2004)
In the case of Shalley v. A & M Beverages, dba Mecca Lounge, McConaha, and Sainsevain, the plaintiff was hit while stopped at a red light by defendant Sainsevain after Sainsevain had just left Mecca Lounge. The plaintiff alleged that Mecca Lounge continued to serve alcohol to defendant Sainsevain after she was obviously intoxicated, her blood alcohol level was .315 at the time of the accident. The jury relieved Mecca Lounge of liability, finding the defendant Sainsevain was 100% at fault for the accident, and awarding plaintiff a total of $400,000, breaking down to $200,000 in compensatory damages and $200,000 in punitive damages.
If you or someone you love has been injured, or worse killed, in an accident involving an intoxicated or impaired driver you are undoubtedly and understandably feeling a range of emotions while facing novel challenges. When presented with seemingly insurmountable difficulties, having an attorney to represent you can make a significant difference. A lawyer will ensure that your rights are asserted and your interests are protected.
For help from an experienced and compassionate attorney contact the Thompson Law Firm, LLC today by calling (480)-634-7480.