“The Driver Who Crashed into Me Is High”: How Defendant’s Marijuana Use Can Impact Your Virginia Motor Vehicle Personal Injury Case

Virginia has recently decriminalized the possession of four (4) ounces or less of marijuana.^[1]   Police in Virginia can no longer “stop, search, or seize any person, place, or thing” based “solely” on “the odor marijuana.”^[2]  Virginians now frequently encounter the distinctive “skunk-like” odor of marijuana in public places.  Alarmingly, Virginians also encounter that odor, sometimes accompanied by visible smoke, emanating from vehicles operating on public roadways.   This is so even though it remains a crime for any person—driver or passenger—to use marijuana “in a motor vehicle being driven upon a public highway of the Commonwealth.”^[3]  Gentry Locke’s personal injury attorneys have seen cases rise regarding this ongoing issue and can help you navigate through what’s next.

The Situation at Hand

Imagine that you are driving home after working a second shift in your hometown.  You have a green light as you approach an intersection.  It is just past midnight and traffic is nonexistent.  As you proceed through the intersection you are hit broadside (“t-boned”) on the driver’s side by another vehicle which you know had run their red light.  The driver comes up to you while you are trapped in the driver’s seat, the crumpled door crushing your injured body.  You smell what you believe is the odor of marijuana.  When you ask the driver if they had been smoking  marijuana, the driver responds, “Yeah. So what?  It’s not illegal,” then falsely accuses you, “Why did you run the red light?”   A police cruiser arrives moments later.  You call out to the officer that you are injured and trapped.  The other driver hurries over to try and tell the officer their side of the story first.  The officer brushes past the other driver to get to you to check on your injuries.  You blurt out: “The driver who crashed into me is high.  They admitted it.  They ran the red light.”

With no eyewitnesses, no vehicle dashcams, and no mounted traffic cameras, your motor vehicle crash could descend into a contest of one driver’s word against the other’s.  But, like you, when the officer returns to the other driver he smells the odor of marijuana.  The other driver has bloodshot eyes, fumbles around when asked for license and registration, and is slow to answer simple questions.  These observations, combined with your statements and the fact of the accident itself, gives the officer reasonable articulable suspicion to conduct a field sobriety test on the other driver, which the driver fails.^[4]  When the officer arrests the other driver for driving while intoxicated (DWI), the driver states: “You can’t do that.  I’m not drunk and I haven’t taken any illegal drugs.”  The officer responds, quoting the Virginia DWI statute:  “Sure I can.  It is unlawful in Virginia for a driver to operate a motor vehicle while ͑ under the influence … of any … self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle  … safely.̕ ”^[5]  Toxicology on the post-arrest blood draw confirms the presence of THC, the active substance primarily responsible for marijuana’s mental effects.^[6]

Where We Can Help

While you are recovering from your injuries, you reach out to the plaintiff’s personal injury attorneys at Gentry Locke about filing a civil lawsuit against the other driver.  You ask, “Does it make a difference that the other driver was high?”  We tell you, “It certainly does. And here’s why.”

First, in your lawsuit, you must prove that the other driver was negligent.  Negligence is the failure to use “ordinary care,” which “is the care a reasonable person would have used under the circumstances of this case.”^[7]  A driver “facing a steady red traffic light has the duty to stop and remain stopped so long as the light is red and thereafter not proceed until it is safe to do so in the exercise or ordinary care.”^[8]  The failure to stop at a red light and not proceed thereafter until it is safe to do is negligent.^[9]  We explain that we will retain an expert forensic toxicologist to testify regarding the significance of the toxicology findings of the other driver’s THC level and about marijuana’s status as a “perception altering drug” that affects “spatial awareness” and can slow the user’s reactions and movements.^[10]  This evidence will make the other driver’s account of their actions, and who had the red light, hard for the jury to believe.

Second, we tell you that the other driver’s DWI from marijuana use may give rise to a punitive damages claim under Virginia law. Where punitive damages are recoverable, you may be awarded up to $350,000.00 in punitive damages by the jury.^[11]  Punitive damages may be awarded in addition to “compensatory damages” aimed at making you whole for your bodily injuries, any disfigurement, medical expenses, lost earnings/reduced earning capacity, pain, suffering, and inconvenience.^[12]  A claim for punitive damages against a driver who was DWI from marijuana “must be supported by factual allegations sufficient to establish the defendant’s conduct was willful or wanton.”^[13]  Where a defendant is DWI from alcohol (rather than marijuana or other drugs), the defendant’s conduct shall be deemed sufficiently willful and wanton to warrant punitive damages if the defendant’s blood alcohol concentration (BAC) is 0.15 or higher at the time of the crash and the defendant knew or should have known while drinking that their ability to drive a motor vehicle would be impaired.^[14]

To recover punitive damages from a defendant who is DWI from marijuana, however, you will have to prove the defendant’s willful and wanton negligence—that is, “action undertaken in conscious disregard of another’s rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.”^[15]  One example of conduct egregious enough to support punitive damages is an intoxicated driver’s continuing to drive the wrong way down a highway after oncoming traffic has blown their horn and flashed their headlights to alert the driver.^[16]  But there are plenty of other ways to prove a defendant acted with conscious disregard for others.  Ultimately, the question of whether a defendant acted with knowledge “that his conduct probably would cause injury to another” will always depend on the specific facts developed. That is why which personal injury lawyer you choose to represent you is so important.  We have a team of experienced attorneys at Gentry Locke who have successfully navigated Virginia personal injury law issues before.  

If you have been seriously injured, or a family member has been seriously injured or killed, in a Virginia motor vehicle collision due to the negligence of another driver (regardless of whether you suspect intoxication), please Contact Us or call 540.983.9300. Our initial consultation is always free and confidential. 

^[1] See Va. Code § 4.1-1100.
^[2] Va. Code § 4.1-1302(A).
^[3] Va. Code § 4.1-1107(B).
^[4] See, e.g., Bryant v. Commonwealth, 2022 Va. App. LEXIS 569 (Ct. of Appeals Nov. 9, 2022) (unpublished).
^[5] Va. Code § 18.2-266(iii).
^[6] Marijuana (dea.gov), accessed 9/13/23.
^[7] Va. Model Jury Instr. – Civil, Instr. No. 4.000.
^[8] Va. Model Jury Instr. – Civil, Instr. No. 10.262.
^[9] Va. Model Jury Instr. – Civil, Instr. No. 10.262.  To prevail, you also must prove that the other driver’s negligence was a proximate cause of the accident and the amount of your damages resulting from the accident.  Va. Model Jury Instr. – Civil, Instr. No. 3.000.
^[10] Bryant, 2022 Va. App. LEXIS 569, at *4-*5.
^[11] Va. Code § 8.01-38.1.
^[12] Va. Model Jury Instr. – Civil, Instr. No. 9.000.
^[13] Woods v. Mendes, 265 Va. 68, 76 (2003).
^[14] Va. Code § 8.01-44.5.
^[15] Woods, 265 Va. at 76-77.
^[16] Booth v. Robertson, 236 Va. 269, 270-72 (1988).