In 2007, a Tampa driver crashed into another vehicle, killing 3 of the 4 other passengers. The driver was later convicted of DUI. As with many DUI cases involving serious bodily injury or manslaughter, the victims of the accident or their surviving family members can pursue civil action, in addition to criminal charges.

The victims’ relatives are pursuing a lawsuit against the convicted drunk driver in order to recover damages for wrongful death. However, in a strange twist, the drunk driver (currently serving time in a Florida prison) has filed suit against the estate of the other driver, now deceased, for “pain and suffering” and “loss of capacity to enjoy life.” The effect of such a strategy on the part of the drunk driver aside, it is generally permissible to be filed in Florida civil courts.

The plaintiffs (families of the drunk driving accident victims) must demonstrate several things in order to prove his or her claim successfully. The first is that there was a duty to act as an ordinary person would, and not drive under the influence of alcohol. It must also be proven that the other driver breached this duty by driving while under the influence of alcohol. Though the criminal trial did result in a conviction for DUI, the fact that the driver was under the influence of alcohol must be proven in the civil trial.

However, the burden of proof in a civil trial is by a preponderance of the evidence, which means the plaintiff must show the driver was more likely driving under the influence of alcohol than not. This is a much lower burden of proof than in a criminal trial, which requires proof beyond a reasonable doubt. Additionally, the plaintiff must prove there was some form of damages, such as injury or death sustained as a result of the breach of duty, and the breach of duty was the actual cause of the damages.

A Florida DUI accident attorney may choose to enlist the aid of expert witnesses to assist in proving the injuries sustained or deaths were a result of the accident. Expert testimony can be provided from medical doctors and specialists, safety experts, and accident deconstructionists, among others. This is in addition to testimony provided by witnesses at the scene of the accident, which include bystanders and even emergency responders.

In the case of the drunk driver countersuing the estate of the deceased driver, the same rules of law apply in proving a claim successfully. The drunk driver (called the counter-plaintiff or cross-plaintiff) in the counter suit must prove:

• that the now defendant, or original plaintiff, breached their duty of acting as an ordinary or reasonably prudent person;
• such behavior caused the pain and suffering sustained by the counter-plaintiff; and
• the actions taken by the now defendant at least partially contributed to their death.

If the convicted drunk driver manages to convince at least 10 members of the 12 person jury that these claims are more than likely true, than the counter-plaintiff may bear less liability for the original plaintiff’s damages. The original plaintiff may also then be held at least partially liable for damages claimed by the drunk driver.