We have a client who was hit in a crosswalk. He wants us to get phone records and do hair follicle testing to determine whether the driver gets high. It’s a natural reaction and raises a couple of issues.
First, it’s unlikely that hair follicle testing could be very definitive in determining whether the driver was impaired the day of the accident. It could tell us if he used substances in the past year, but probably wouldn’t get much more specific than that.
Second, and probably more surprising to most people, in most cases it doesn’t matter whether or not the driver was impaired.
Seriously? But the media is flooded with stories about drivers who are drunk and high. There’s a tidal wave of information about impaired driving. There’s widespread scorn for impaired drivers. MADD has been around for over 30 years.
All this is true. But in Washington it rarely matters whether the other driver was drunk, high or even sexting.
Why? Most people think they should be able to recover extra money from a driver who was impaired. So being drunk or high should matter. The fact that someone has been drinking or using is relevant.
But in Washington we don’t have punitive damages. Punitive damages are meant to punish. We just have compensatory damages. They’re meant to compensate. So in Washington level of culpability, or how responsible someone is, doesn’t increase the amount you can recover.
Basically, you’re able to recover the same amount regardless of whether someone had sun in their eyes or was in the midst of slamming heroin. What you get are those damages that compensate you for the losses you’ve suffered: treatment expenses, lost wages, pain and suffering, etc. They don’t go down if it was “just an accident” or up if someone was wasted.
It’s ridiculous that we don’t have punitive damages. There are only four jurisdictions in the United States that don’t have punitive damages: Louisiana, Nebraska, Puerto Rico, and Washington. What’s the solution? Talk to your legislators and let them know that it’s a big hole in Washington law that should be filled.