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What Should I Do If I Am In A Car Accident with a Drunk Driver?

Fri 28 Apr, 2023 / by / Car Accidents

As you probably already know, you should be thankful you are alive after a car accident with a drunk driver to even be here to ask this question. Drunk driving is incredibly dangerous. In Illinois alone, there are nearly 4,000 fatalities resulting from drunk driving every year.  You can bring a claim against a driver who has caused a crash even if he was not drunk. But there are certain nuances to a legal case when the driver was under the influence. Fortunately, our firm is experienced in drunk driving cases. Here is what you should know if you have been in an accident with a drunk driver.

What is the Law in Illinois?

Let’s start with a discussion of the law. In Illinois, a driver’s blood alcohol concentration must be under .08 to be considered under the limit. However, you can still be convicted of a DUI if your blood alcohol count is under .08 if your driving is otherwise impaired.

Illinois drivers at fault must compensate victims for damages that stem from car accidents. One of the misunderstandings victims have is that they think that a driver who was under the influence is automatically at fault. This is incorrect. It is up to the victim–by way of their lawyer–to demonstrate that the other driver was at fault.

In order to show that the driver was at fault, you need to prove four elements: duty of care, breach of duty, causation, and damages.

Duty of Care

Drivers who elect to get behind the wheel assume a duty of care towards others on the road. They must avoid driving in a way that is likely to cause injury. They must watch where they are driving, pay attention, and drive defensively. 

Breach of Duty

Drivers breach their duty when they do not comply with a reasonable standard of care. Things that constitute a breach: breaking traffic laws, not observing traffic signals, speeding, and not yielding. Generally, driving under the influence of alcohol would also constitute a breach.


Causation will be shown by demonstrating that the drinking and driving caused the accident. There is no causation if the accident would have happened regardless of whether the driver was drinking. For instance, if a stop sign was blown over and the driver drove through, causing an accident, then alcohol had nothing to do with the resultant accident. However, if there was a stop sign, but the driver was too intoxicated to even notice, then causation will exist.


Finally, the victim needs to show that they have suffered harm as a result of the accident. That is, they need to show bodily injury or property damage. Even if the other person was drunk, and even if that person got into an accident with you, showing the other three elements will not allow you to recover without demonstrating that you suffered legally-recognizable harm. 

Comparative Negligence

We must also mention the principle of comparative negligence. Let’s say that you have shown that the other driver was at fault. They will have to pay damages. But the court will also consider your behavior. That is, if you fell below the standard of care that a reasonable person would take, you can also be found to be negligent. For instance, you may have been texting when you were hit by a drunk driver. While that may seem unfair, if the other attorney can show that you contributed to the accident by your distracted driving, you can be found to be comparatively negligent. What this means for you is that the amount of your damages will be reduced by the percentage that you were at fault.

I’ve Been in an Accident with a Drunk Driver–What Now?

Getting in an accident with a drunk driver can be a jarring experience. Here is what you should do if you find yourself a victim of a drunk driver.

  • Get Medical Care

Your priority should be your own health, whether you suspect alcohol use or not. Do not just accept that you “feel fine” and refuse medical care. First, even if you truly feel okay right now, you may not feel okay in a few days or months down the road. This is because when car accidents happen, we can be in a state of shock that prevents us from feeling pain. Also, some injuries occur much later than an actual accident. 

Not only is going to the doctor critical for your health, but it is also important in order to create evidence that can help support an insurance claim or personal injury lawsuit in the future. If you do not seek medical attention right away and try and get your bills paid, the driver’s attorney will attempt to argue that you had a preexisting condition or suffered the injury longer. Having a doctor certify that you have suffered an injury as a result of the car crash provides the evidence you may need down the road to get your bills paid.

  • Call the Police

Call the police immediately. Be sure to let the officer know that you suspect the other driver is intoxicated. Of course, you will not be able to definitively prove that the other driver was drunk just based on your testimony. But you should look for things like swerving, uneven speed, and not yielding as evidence of inebriated driving. Your testimony about the other driver’s behavior may be enough to provide reasonable grounds for that officer to administer a field sobriety test. Make sure the police file a crash report. If the police do not report to the scene, you should go to the police department and file the report.

  • Get Legal Representation 

Hire an attorney who has represented clients who have been the victim of car crashes when the other driver is drunk. They are well-versed in Illinois law, understand how to collect evidence to help your claim, and present your case in front of a jury or insurance claims adjuster to get you the maximum amount of money. Contact our office today to discuss your legal options.