Comparative Fault in Illinois Drunk Driving Accident Cases

You would think comparative fault would not be an issue when a drunk driver crashes into you. The driver was intoxicated, broke the law, and caused the accident. But insurance companies will still look for ways to assign you a share of the fault — and under Illinois law, if they succeed in pushing your fault to 50% or more, you recover nothing.

This article is part of our complete guide to drunk driving accident claims in Illinois.

How Illinois Comparative Fault Works

Illinois follows modified comparative fault under 735 ILCS 5/2-1116. If you are partially at fault for the accident, your recovery is reduced by your percentage of fault. If you are 50% or more at fault, you are barred from recovering anything. The 2025 amendment to this statute lowered the threshold from 51% to 50%, making it slightly easier for defendants to block your claim entirely.

In a drunk driving case, the intoxicated driver almost always bears the majority of the fault. But “almost always” is not “always,” and insurance adjusters are skilled at constructing fault arguments.

Common Comparative Fault Arguments in DUI Cases

Defense attorneys and insurance adjusters may argue:

• You were speeding. Even a few miles over the limit can be used to argue you contributed to the severity of the crash.
• You ran a red light or stop sign. If you entered an intersection unlawfully, the defense may argue the crash would not have occurred regardless of the driver’s intoxication.
• You were distracted. Texting, adjusting GPS, or looking at a passenger — any distraction can be used against you.
• You failed to avoid the collision. The argument that a more alert driver could have swerved or braked in time.
• You were also intoxicated. If you were drinking too, the defense will aggressively pursue a comparative fault argument.
• You were a voluntary passenger. If you knowingly rode with a drunk driver, the defense will argue you assumed the risk.

Why Juries Rarely Assign Major Fault to Sober Victims

Despite these arguments, juries in drunk driving cases strongly sympathize with sober victims. The driver chose to get behind the wheel intoxicated — a decision so reckless that minor traffic infractions by the victim pale in comparison. Experienced attorneys know how to frame the case so the jury focuses on the drunk driver’s conduct rather than minor issues with the victim’s driving.

That said, some scenarios do result in meaningful fault allocation. Passengers who voluntarily ride with drivers they know are intoxicated may face 10-25% fault reductions. Victims who were also under the influence may face more significant reductions.

Protecting Yourself from Comparative Fault Arguments

The best defense against comparative fault is evidence. Photos of the scene, the police report, witness statements, and your own actions immediately after the crash all contribute to showing you were driving safely and acting responsibly. Do not admit fault at the scene. Do not speculate about what you could have done differently. Let the evidence speak for itself.

Frequently Asked Questions

Can I still recover damages if I was partially at fault in a drunk driving accident?

Yes, as long as your fault is less than 50%. Under Illinois modified comparative fault, your damages are reduced by your percentage of fault. For example, if you are found 10% at fault and your damages are $500,000, you recover $450,000.

What if the insurance company says I was 50% at fault?

At 50% or more fault, you recover nothing under Illinois law. This is why having an attorney is critical — a skilled attorney can challenge the insurer’s fault allocation and present evidence showing the drunk driver bore the overwhelming majority of responsibility.

Does riding as a passenger with a drunk driver count as comparative fault?

It can. If you knew the driver was intoxicated and voluntarily got in the car, the defense may argue you assumed some risk. However, this does not bar your claim — it reduces your recovery. And even passengers who knew the driver was drinking still have valid claims against the drunk driver.

Talk to a Peoria Personal Injury Lawyer

Call (309) 672-9000 or contact us online for a free consultation. At Parker & Parker Attorneys at Law, we handle personal injury cases on a contingency fee basis — you pay nothing unless we recover compensation for you.