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2013 SESSION

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13101826D
SENATE BILL NO. 1112 Offered January 9, 2013 Prefiled January 9, 2013 A BILL to amend and reenact § 8.01-44.5 of the Code of Virginia, relating to exemplary damages for persons injured by intoxicated drivers. ---------- Patrons-- McDougle; Delegate: Surovell ---------- Referred to Committee for Courts of Justice ----------

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. Exemplary 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 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 or at the time the defendant's blood or breath was tested, 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. Following a conviction for driving under the influence under § 18.2-36.1, 18.2-51.4, 18.2-266, 46.2-341.24, or a similar local ordinance, the results of a blood or breath test of the accused taken pursuant to § 18.2-268.2 for the purpose of prosecuting the charge are admissible for the purpose of showing willful and wanton conduct under this section. In addition to any other forms of proof, a party may submit a copy of the certificate of analysis certified by the clerk of the court in which the conviction occurred, as well as a similarly certified record of the conviction, including the uniform summons form, which shall be prima facie evidence of the conviction and the defendant's blood alcohol content.

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, which 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 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.