At the arraignment, the driver who hit you may plead no contest rather than guilty. In a criminal case, that choice changes almost nothing: under Penal Code section 1016, the court treats a no contest plea the same as a guilty plea and finds the defendant guilty either way. In your civil case it can change a great deal, and which way depends on how the offense was charged. Where the offense isn’t punishable as a felony, section 1016 says the plea can’t be used against the driver as an admission in a civil suit arising out of the same conduct. Where it is punishable as a felony, Evidence Code section 1300 lets the conviction be offered to prove facts essential to that judgment, no contest plea and all. Driving under the influence causing injury is usually filed under Vehicle Code section 23153, which can be charged either way.
That’s one example of the larger problem facing anyone hit by a drunk driver in California. That charging decision gets made without you at the table. The criminal prosecution and your injury claim run on different rules, with very different ideas about what you’re owed. The district attorney represents the People of the State of California. Nobody in that courtroom represents you.
Restitution Covers the Bills, Not the Damage
California does give crime victims a path to money through the criminal case. Under Penal Code section 1202.4, a victim who suffers economic loss from a crime is entitled to restitution directly from the convicted defendant, and the sentencing court is required to order it. In a DUI injury case, a restitution order can cover medical expenses, lost earnings, property damage, and funeral expenses. It’s enforceable as a civil judgment and stays collectible for years, which is worth something when the defendant has no insurance.
What restitution leaves out is the larger part of most injury claims. Restitution reaches verifiable economic loss. It doesn’t cause pain and suffering, emotional distress, loss of enjoyment of life, disfigurement, or physical impairment, and it isn’t a vehicle for punitive damages. For someone with a serious orthopedic injury or a head injury, the non-economic component is frequently the majority of what the claim is worth. A restitution order can be paid in full and still leave most of the harm uncompensated.
The two proceedings also interact. Money the driver’s insurer pays in a civil settlement must be offset against a restitution order, but only to the extent those payments cover items of loss the restitution order includes, so how a settlement allocates among categories can change what the driver still owes. Signing a civil release doesn’t wipe out the restitution obligation, because the People’s right to restitution isn’t the victim’s to waive. Restitution the driver actually pays is credited against any other judgment for the same losses.
Punitive Damages Are Available, But They Aren’t Automatic
Punitive damages under Civil Code section 3294 require malice, oppression, or fraud. In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court held that driving while intoxicated may constitute malice where the circumstances disclose a conscious disregard of the probable dangerous consequences. That holding is why punitive damages come up in nearly every DUI injury case, and it’s a meaningful piece of leverage.
It’s also overstated. In 1987, after Taylor was decided, the Legislature amended section 3294 to require that the conduct also be despicable, and to require proof of malice by clear and convincing evidence rather than a preponderance. California trial courts now evaluate these claims case by case instead of granting them on the fact of intoxication alone. What tends to carry one is aggravating detail out of the criminal investigation file, like a prior conviction or a probation condition that already prohibited this driver from drinking and driving at all. That material is easier to develop while the prosecution is active than to reconstruct a year later.
There’s also a collection problem. Under Insurance Code section 533, an insurer isn’t liable for a loss caused by the willful act of its insured, so a standard auto liability policy generally won’t fund punitive damages. The award gets collected from the driver’s own assets, and its practical value depends on what that driver actually has.
The Bar Probably Isn’t Liable, and That Catches People Off Guard
Most states let an injured person sue the establishment that overserved a drunk driver. California generally doesn’t. Civil Code section 1714 states that furnishing alcohol isn’t the proximate cause of injuries resulting from intoxication, and that the consumption is. Subdivision (c) shields social hosts specifically, and the Business and Professions Code extends comparable protection to licensed sellers.
Two exceptions survive, and both are narrow. Under Civil Code section 1714, subdivision (d), an adult who knowingly furnishes alcohol at his or her residence to someone he or she knows or should know to be under 21 can be held liable, and the claim may be brought by that person or by anyone harmed by that person. Separately, Business and Professions Code section 25602.1 permits a claim against a licensee, or someone authorized to sell, who serves an obviously intoxicated minor where that sale is the proximate cause of the injury. Both turn on facts that disappear quickly, from who actually poured to what the receipts and security video show, so that investigation belongs in the first weeks.
If Your Own Car Wasn’t Insured, the Conviction Changes Your Recovery
Proposition 213, codified at Civil Code section 3333.4, bars an uninsured vehicle owner from recovering non-economic damages, even when someone else caused the crash entirely, and it catches people whose coverage lapsed weeks earlier. Subdivision (c) is the exception that applies here: where the injured uninsured owner was hurt by a motorist who was operating in violation of Vehicle Code section 23152 or 23153 and who was convicted of that offense, the bar on non-economic damages doesn’t apply. Punitive damages survive Proposition 213 as well; the Court of Appeal held in Nakamura v. Superior Court (2000) 83 Cal.App.4th 825 that section 3333.4 doesn’t preclude them.
Your Civil Deadline Doesn’t Pause for the Criminal Case
Under Code of Civil Procedure section 335.1, a personal injury claim has to be filed within two years of the injury. A felony DUI or vehicular manslaughter prosecution, with continuances, can run longer than that. Waiting for a verdict before consulting an attorney is how a legitimate claim ends up against its own deadline. If a public entity is involved, through a government vehicle or an on-duty employee, the six-month government claim deadline applies instead, and it’s far less forgiving.
Running the civil claim alongside the prosecution is usually an advantage. The criminal file produces police reports, blood alcohol results, reconstruction analysis, and witness statements that would otherwise take formal discovery to obtain. Civil counsel can appear at the restitution hearing and shape the order that comes out of it. And where the driver turns out to be uninsured or minimally insured, your own uninsured and underinsured motorist coverage carries its own notice requirements and its own two-year clock, entirely separate from the criminal calendar.
How Wunderli Injury Law Handles DUI Injury Cases
Impaired driving is a persistent problem on the roads through south Orange County, and local enforcement has been increasingly public about it, as the Orange County Sheriff’s recent enforcement operations illustrate. The firm represents injured people throughout Orange County and Southern California, including Dana Point, San Clemente, Laguna Beach, San Juan Capistrano, and the surrounding communities. Where a crash produced a concussion or other head trauma, Kyle’s certification as a Brain Injury Specialist through the Brain Injury Association of America adds depth to how those injuries get documented and valued. Where someone was killed, the wrongful death claim belongs to the surviving family and runs separately from anything the criminal court orders.
If you were hit by a drunk driver, call the Dana Point office at (949) 866-3833 or reach out through the contact page for a free, confidential case evaluation. Kyle Wunderli handles these cases personally, and an early conversation can cover where the criminal case is headed and what your own claim needs. There is no attorney fee unless we recover compensation for you. Costs and expenses may apply depending on the outcome of your case.
Frequently Asked Questions
Do I have to wait for the DUI case to finish before starting a civil claim?
No, and waiting is usually the wrong call. The two proceedings run independently, and your two-year civil deadline under Code of Civil Procedure section 335.1 keeps running while the prosecution is pending. Filing or negotiating a civil claim during the criminal case is routine, and it often gives access to investigative material sooner. If you want a sense of the overall arc, the timeline of a California injury case lays out the phases. The driver’s insurer will also keep calling while the prosecution is pending, and an adjuster asking for a recorded statement is building a comparative fault file whether or not there’s a conviction, so it’s worth understanding how those calls work early.
Will the driver’s insurance company pay punitive damages?
Generally no. Insurance Code section 533 provides that an insurer isn’t liable for a loss caused by the willful act of its insured, and standard auto policies are written accordingly. Compensatory damages, including pain and suffering, are typically covered by the liability policy. A punitive award would have to be collected from the driver personally, which is why an early look at that driver’s assets and any additional coverage is part of evaluating the case.
What if the drunk driver had no insurance or almost none?
That’s common, and it’s what your own uninsured and underinsured motorist coverage exists for. A UM or UIM claim is made against your own carrier and comes with strict notice requirements and a separate two-year rule for preserving the claim, none of which the criminal case satisfies for you. The UM and UIM coverage article walks through how California handles it, including the reduction rule that surprises most policyholders.
The driver was convicted. Doesn’t that settle liability in my case?
Not by itself. Even where the conviction is admissible, it establishes the facts essential to that criminal judgment, not every element of your civil claim. You still have to prove that the collision caused your particular injuries and what those injuries are worth, which is where these cases are actually contested. A conviction also doesn’t foreclose an argument that you bear some share of fault; California’s pure comparative negligence rule reduces recovery by the injured person’s percentage of fault rather than barring it, and insurers argue that percentage in DUI cases is the same as in any other.
Disclaimer: The content of this article is for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship with Wunderli Injury Law, PC or any of its attorneys. Every case is different, and the outcome of any legal matter depends on the specific facts involved. If you have been injured by an impaired driver, you should consult with a qualified California personal injury attorney about your specific situation.
SOURCES AND CITATIONS
All citations verified against primary California authority.
- [1] A plea of nolo contendere to a crime punishable as a felony has the same legal effect as a guilty plea for all purposes; in cases other than felonies, the plea and any admissions made during the court’s inquiry may not be used against the defendant as an admission in a civil suit based upon or growing out of the act on which the prosecution is based. Source: Cal. Penal Code section 1016(3).
- [2] A victim who incurs economic loss as a result of the commission of a crime shall receive restitution directly from the convicted defendant, in an amount sufficient to fully reimburse every determined economic loss. Source: Cal. Penal Code section 1202.4(a), (f).
- [3] Criminal restitution is limited to economic loss and does not encompass non-economic damages such as pain and suffering, or punitive damages, which remain available only in a civil action. Source: Cal. Penal Code section 1202.4(f)(3) (enumerating recoverable economic loss categories).
- [4] A restitution order imposed under section 1202.4(f) is enforceable as if it were a civil judgment, and restitution actually collected is credited against any other judgment for the same losses obtained against the defendant. Source: Cal. Penal Code section 1202.4(i), (j).
- [5] A payment to the victim by the defendant’s liability insurer qualifies as a payment directly from the defendant and must offset the restitution obligation, but only to the extent those payments are for items of loss included in the restitution order. A release signed by the victim does not abrogate the restitution obligation, because a victim cannot waive the People’s right to have restitution paid as part of the sentence. Source: People v. Bernal (2002) 101 Cal.App.4th 155, 161-162, 168; People v. Short (2008) 160 Cal.App.4th 899.
- [5] The act of operating a motor vehicle while intoxicated may constitute malice under Civil Code section 3294 if performed under circumstances disclosing a conscious disregard of the probable dangerous consequences. Source: Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.
- [6] The 1987 amendments to Civil Code section 3294 require that conduct in conscious disregard of the rights or safety of others also be despicable, and require proof of malice, oppression, or fraud by clear and convincing evidence. Source: Cal. Civ. Code section 3294(a), (c)(1).
- [7] An insurer is not liable for a loss caused by the willful act of the insured, which is the basis on which California treats punitive damages as generally uninsurable. Source: Cal. Ins. Code section 533.
- [8a] A person who furnishes an alcoholic beverage to an obviously intoxicated person is not civilly liable to an injured person for injuries inflicted as a result of the consumer’s intoxication; the Legislature abrogated Vesely, Bernhard, and Coulter in favor of treating consumption rather than service as the proximate cause. Source: Cal. Bus. & Prof. Code section 25602(b), (c).
- [8] The furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication; the consumption is. No social host who furnishes alcoholic beverages to any person may be held liable for damages resulting from that consumption. Source: Cal. Civ. Code section 1714(b), (c).
- [9] A parent, guardian, or other adult who knowingly furnishes alcoholic beverages at his or her residence to a person known or reasonably known to be under 21 years of age may be found to have proximately caused resulting injuries or death; the claim may be brought by or on behalf of the person under 21 or by a person harmed by that person. Source: Cal. Civ. Code section 1714(d)(1); Judicial Council of Cal. Civ. Jury Instr. (CACI) No. 427.
- [10] A person licensed or authorized to sell alcoholic beverages who sells, furnishes, or gives an alcoholic beverage to an obviously intoxicated minor may be liable for resulting injuries or death. Source: Cal. Bus. & Prof. Code section 25602.1.
- [11] An uninsured owner of a vehicle involved in an accident may not recover non-economic losses; the bar does not apply where the injured person was hurt by a motorist operating in violation of Vehicle Code section 23152 or 23153 who was convicted of that offense. Source: Cal. Civ. Code section 3333.4(a)(2), (c).
- [12] Civil Code section 3333.4 does not preclude an award of punitive damages. Source: Nakamura v. Superior Court (2000) 83 Cal.App.4th 825.
- [13] An action for assault, battery, or injury to or death of an individual caused by the wrongful act or neglect of another shall be commenced within two years. Source: Cal. Code Civ. Proc. section 335.1.
- [14] A claim for personal injury against a public entity must be presented in writing to the entity within six months of accrual. Source: Cal. Gov’t Code sections 911.2, 945.4.
- [15] Evidence of a final judgment adjudging a person guilty of a crime punishable as a felony is not made inadmissible by the hearsay rule when offered in a civil action to prove any fact essential to the judgment. Source: Cal. Evid. Code section 1300.
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