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2017 SESSION
Be 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. Punitive damages for persons injured by intoxicated 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 punitive 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; and (iii) the defendant's intoxication was a proximate
cause of the injury to or death of the plaintiff. For the purposes of clause
(i), it shall be rebuttably presumed that the blood alcohol concentration at
the time of the incident causing injury or death was at least as high as the
test result as shown in a certificate issued pursuant to § 18.2-268.9 or,
in a certificate of analysis for a blood test administered pursuant to §
18.2-268.7, provided that the test was administered in accordance with the
provisions of §§ 18.2-268.1 through 18.2-268.12, or in a certificate of
analysis for a test performed by the Department of Forensic Science on whole
blood drawn pursuant to a search warrant, provided that the test was
administered in accordance with the provisions of §§ 18.2-268.5, 18.2-268.6,
and 18.2-268.7. In addition to any other forms of proof, a party may submit
a copy of a certificate issued pursuant to § 18.2-268.9 or, a
certificate of analysis for a blood test administered pursuant to § 18.2-268.7,
or a certificate of analysis for a test performed by the Department of Forensic
Science on whole blood drawn pursuant to a search warrant, which shall be
prima facie evidence of the facts contained therein and compliance with the
applicable provisions of §§ 18.2-268.1 through 18.2-268.12. For the
purposes of clause (ii), it shall be rebuttably presumed that the defendant who
has consumed alcohol knew or should have known that his ability to operate a
motor vehicle, engine, or train was or would be impaired by such consumption of
alcohol.
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 (a)
when the incident causing the injury or death occurred the defendant was
intoxicated, which may be established by evidence concerning the conduct or
condition of the defendant; (b) at the time the defendant began drinking
alcohol, or during the time he was drinking alcohol, or when he was
operating a motor vehicle, he knew or should have known that his ability to
operate a motor vehicle was impaired; and (c) the defendant's intoxication was
a proximate cause of the injury to the plaintiff or death of the plaintiff's
decedent. In addition to any other forms of proof, a party may submit a
certified copy of a court's determination of unreasonable refusal pursuant to §
18.2-268.3, which shall be prima facie evidence that the defendant unreasonably
refused to submit to the test. For the purposes of clause (b), it shall be
rebuttably presumed that the defendant who has consumed alcohol knew or should
have known that his ability to operate a motor vehicle, engine, or train was or
would be impaired by such consumption of alcohol.
Evidence of similar conduct by the same defendant subsequent to the date of the personal injury or death arising from the operation of a motor vehicle, engine, or train shall be admissible at trial for consideration by the jury or other finder of fact for the limited purpose of determining what amount of punitive damages may be appropriate to deter the defendant and others from similar future action.