Hit by a Drunk or Distracted Driver? Why You May Be Owed More Than Standard Damages

Most car crashes are true “accidents”—a momentary lapse in judgment or a mistake.

But if you were hit by a drunk driver, or someone who had their eyes glued to their phone instead of the road, it wasn’t a mistake. It was a choice.

You are rightfully angry. You are facing surgeries and lost income because someone else decided their text message or their “one last drink” was more important than your life.

In Colorado, the law recognizes this difference. You may be entitled to significantly more compensation than in a standard car crash claim.

Beyond “Negligence”: Willful and Wanton Conduct

In a normal crash, we prove the other driver was “negligent” (careless).

When a driver is drunk, high, or texting, their behavior often crosses the line into “willful and wanton conduct.” This means they knew their behavior was dangerous but did it anyway, with a reckless disregard for the safety of others.

Proving this opens the door to Punitive Damages (also called Exemplary Damages).

• Standard Damages pay you back for what you lost (medical bills, lost wages, pain and suffering).
• Punitive Damages are designed purely to punish the at-fault driver and set an example so others don’t do the same thing.

The Race for Evidence (Especially for Distracted Driving)

Proving impairment or distraction requires immediate action.

• DUI Cases: The police report and breathalyzer results are gold standard evidence. We also often pull police body-cam footage to show a jury exactly how stumbling drunk the driver was at the scene.
• Texting/Distracted Cases: This is harder. Drivers lie and say, “I was just changing the radio.” We need to send urgent legal demands to preserve their cell phone data immediately to prove they sent a text at the exact moment of impact. This data can disappear quickly if not preserved.

Don’t Wait for the Criminal Case

Drunk drivers often face criminal charges. You might think you have to wait for their criminal trial to finish before you can sue them for money.

DO NOT WAIT. The criminal case is completely separate from your civil claim for money. The criminal case might take a year to resolve, or they might take a plea deal that doesn’t help you at all. You need to start your civil claim immediately to lock down insurance money before other victims (if any) deplete the available funds.

The “Quick Offer” Trap

Insurance companies for drunk drivers know they are in big trouble. They know a jury will hate their driver.

Often, they will race to offer you a quick settlement—maybe even the full policy limit right away—hoping you take it before you realize you could have sued the driver personally for punitive damages as well. Never accept an offer in a DUI case without a lawyer reviewing it first.

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Frequently Asked Questions

1. Can I sue the bar that served the drunk driver? SOMETIMES. This is called Colorado’s “Dram Shop” law. You can generally only sue the bar if you can prove they served someone who was strictly “visibly intoxicated” or under 21. These are tough cases that require immediate investigation (securing bar security footage/receipts).

2. Does the drunk driver’s insurance cover “punitive damages”? Actually, many insurance policies have exclusions that say they won’t pay for punitive damages because it was an intentional reckless act. However, we can often still force them to pay by arguing the conduct technically still falls under their general liability coverage, or by pursuing the driver’s personal assets.

3. The driver was high on marijuana, not alcohol. Is that different? Legally, no. Driving while impaired by drugs (even prescription meds or legal recreational marijuana) is treated the same as alcohol DUI. The challenge is proving impairment, as THC blood tests are more complex than alcohol breath tests.

4. Is texting while driving illegal in Colorado for everyone? YES. Texting while driving is banned for all drivers. For drivers under 18, using a cell phone at all (even for calls) is illegal. Proving they were texting is key to upgrading your case from simple negligence to willful/wanton conduct.