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2004 SESSION
040537404Be it enacted by the General Assembly of Virginia:
1. That § 8.01-44.5 of the Code of Virginia is amended and reenacted as follows:
§ 8.01-44.5. Exemplary damages for persons injured by malicious or willful or wanton drivers.
In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others.
A defendant's conduct shall be deemed sufficiently willful or wanton as to show
a conscious disregard for the rights of others when the evidence proves that
(i) when the incident causing the injury or death occurred, the
defendant had a blood alcohol concentration of 0.15 percent or more by weight by
volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the
defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should
have known that his ability to operate a motor vehicle, engine or train would be impaired, or
when he was operating a motor vehicle he knew or should have known that his
ability to operate a motor vehicle was impaired; as a result of intentional
alcohol consumption and (iii) the defendant's intoxication was a proximate
cause of the injury to or death of the plaintiff.
However, when a defendant has unreasonably refused to submit to a test of his
blood alcohol content as required by § 18.2-268.2, a defendant's conduct shall
be deemed sufficiently willful or wanton as to show a conscious disregard for the
rights of others when the evidence proves that (i) when the incident causing
the injury or death occurred the defendant was intoxicated as a result of
intentional alcohol consumption, which intoxication may be established by
evidence concerning the conduct or condition of the defendant; (ii) at the time
the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or
should have known that his ability to operate a motor vehicle was impaired; and
(iii) the defendant's intoxication was a proximate cause of the injury to the
plaintiff or death of the plaintiff's decedent. A certified copy of a court's determination of
unreasonable refusal pursuant to § 18.2-268.3 shall be prima facie evidence
that the defendant unreasonably refused to submit to the test.