Tort Law

 This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Alcoholic Intoxication and on the related topic of vehicle accidents.  For more information on alcoholic intoxication issues see the page on Wikipedia.

Alcoholic Intoxication-Statutes

See Va. Code § 4.1-100 as to definition of intoxicated.

See Va. Code § 4.1-304 as to persons to whom alcohol may be sold.

See Va. Code § 8.01-44.5 as to punitive damage awards.

See Va. Code § 4.01-413.02 as to admissibility of alcohol test.

See Va. Code § 18-2-267 et seq. as to criminal statutes dealing with driving while intoxicated.

Alcoholic Intoxication-Cases

2003 Santen v. Tuthill, 265 Va. 492, 578 S.E.2d 788.

Plaintiff sought to admit evidence of blood-alcohol level of defendant. At no time did plaintiff proffer any evidence that the actual machine used to make this determination had in fact been calibrated or was accurate. Without that foundation, the subsequent testimony was not admissible.

2003 Woods v. Mendez, 265 Va. 68, 574 S.E.2d 263.

Alcoholic intoxication.Auto accident case where plaintiff alleged that both defendants were intoxicated and driving recklessly. Trial court improperly sustained demurrer as to punitive damage claim. Claim for punitive damages in common law must be supported by factual allegations sufficient to establish that defendants’ conduct was willful or wanton. Intoxication alone will not subject a negligent driver to a punitive damage award. Facts alleged here were that first defendant was operating motor vehicle after consuming at least ten beers, he continued to drink while driving his vehicle knowing that he had not slept sufficiently and was in actual danger of falling asleep and then collided with plaintiff’s vehicle at a speed of at least 60 miles per hour and had made no attempt to slow his vehicle or take evasive action prior to collision. These facts are sufficient to establish punitive claim as to that defendant. As to the second defendant, he had blood-alchohol level of 0.18, intentionally swerved his vehicle back and forth across three lanes of interstate highway in a manner that impeded and obstructed other highway drivers. These facts are likewise sufficient to establish punitive damage claim. Plaintiff’s punitive damage claim under Va. Code § 8.01-44.5 likewise was sufficient. Trial court in this case improperly concluded that a rebuttable presumption exists that a defendant’s blood-alcohol level at the time of driving is the same as it is at the time of testing after his arrest. In this case, one defendant had a blood-alchohol level subsequent to the accident of 0.13. No such presumption exist in regards to § 8.01-44.5.

1999 Johnson v. Campbell, 258 Va. 453, 521 S.E.2d 764.

When illegality defense is asserted, consent or participation in the unlawful act by plaintiff precludes recovery for injuries sustained as result of that act. In this case, it was alleged that adults contributed to delinquency of minors by allowing or making alcohol accessible to them. Factual questions presented as to whether or not that conduct was the cause of injury and therefore, it was error for trial court to decide issue as a matter of law.

1998 Shelby Ins. Co. v. Kozak, 255 Va. 411, 497 S.E.2d 864.

Alcoholic intoxication.In this automobile accident case defendant sought to offer evidence of petition to grant restricted permit to drive motor vehicle filed by plaintiff. Petition reported that plaintiff had been addicted to use of alcohol. This was not relevant since there was no evidence that drinking had played any role in this collision.

1993 Huffman v. Love, 245 Va. 311, 427 S.E.2d 357.

Alcoholic intoxication.Defendant in this auto accident case was intoxicated in excess of three times statutory level. In determining degree of defendant’s negligence, intoxication is relevant as aggravating factor, increasing with level of intoxication.

1993 Puent v. Dickens, 245 Va. 217, 427 S.E.2d 340.

Evidence of alcoholic intoxication is not relevant to determination of quantum of compensatory damages and should not be admitted when that is only issue before jury.

1989 Mastin v. Theirjung, 238 Va. 434, 384 S.E.2d 86.

If plaintiff’s alcoholism has no relevance then it is not admissible. In this case it was relevant because physician testified that this history made diagnosis more difficult and because history plaintiff gave to physician indicated she had recently consumed alcohol.

1987 DeWald v. King, 233 Va. 140, 354 S.E.2d 60.

Fact that plaintiff is alcoholic is irrelevant in this personal injury case since there is no evidence that it had any impact on accident or damages.

1987 Harrell v. Woodson, 233 Va. 117, 353 S.E.2d 770.

Alcoholic intoxication.Consumption of four cans of beer in 45 minutes, which ended 3.5 hours before accident is sufficient evidence to raise inference of intoxication or impaired capacity.

1986 Arndt v. Russillo, 231 Va. 328, 343 S.E.2d 84.

Evidence of blood alcohol of plaintiff’s decedent not relevant since there is no defense of contributory negligence or assumed risk.

1985 Baker v. Taylor, 229 Va. 66, 326 S.E.2d 669.

Alcoholic intoxication.Mere odor of alcohol on breath is insufficient to establish intoxication or lack of control. Defendant consumed four to five bottles of beer and part of glass of wine within four hours. This was sufficient to give rise to inference of alcoholic intoxication. There was also evidence of lack of control. The evidence of alcohol consumption was admissible and sufficient to support jury instruction on intoxication or lack of control induced by alcohol. The “mere odor” rule does not apply where: (1) evidence shows impairment, (2) quantity of alcohol and time of its consumption are sufficient to raise inference, (3) quantity of alcohol sufficient to impair capacity.

1984 Virginia & Md. Ry. v. White, 228 Va. 140, 319 S.E.2d 755.

Alcoholic intoxication.A toxicologist testified that he sampled decedent’s blood and it contained 0.11 percent alcohol. In his opinion that level of alcohol would impair average person’s faculties. Two eyewitnesses who saw decedent shortly before accident testified that he appeared normal in speech, walk and appearance and showed no signs of being intoxicated. Jury issue was presented as to whether or not he in fact was under influence.

1984 Hoffner v. Kreh, 227 Va. 48, 313 S.E.2d 656.

Plaintiff offered evidence of alcohol consumption to show that it might have caused defendant to fail to maintain proper lookout. There was no evidence that defendant was not fully alert right after accident, there was no odor of alcohol and there was no other irregularity in regards to his appearance or actions. As such, this evidence of defendant’s consumption of two drinks of scotch over period of three hours was not admissible.

1984 Hereford v. Paytes, 226 Va. 604, 311 S.E.2d 790.

Alcoholic intoxication.Trial court allowed testimony of expert in internal medicine and toxicology that based upon blood alcohol level of 0.14 two hours after accident, defendant’s blood alcohol level at time of accident would have been 0.16 to 0.17 and that this would have had substantial measurable effect on reaction time, judgment, depth perception in general, motor skills coordination, etc. Supreme Court did not rule on admissibility of that evidence.

1981 Hemming v. Hutchinson, 221 Va. 1143, 277 S.E.2d 230.

Evidence which indicates only mere odor of alcohol is inadmissible. Defendant had three beers approximately seven hours before accident. This was irrelevant.

1976 Norfolk & W. Ry. v. Wright, 217 Va. 515, 229 S.E.2d 890.

Railroad locomotive struck vehicle at crossing inside corporate limits. Under circumstances no duty to sound warning in corporate limits. Even if blown, fair inference that driver would not be mentally or physically able to properly react as postmortem blood analysis showed 0.13 alcohol weight content.

1976 Waters v. Holloman, 216 Va. 726, 222 S.E.2d 549.

Evidence sufficient to justify finding that defendant under influence of alcohol. No inference this was cause of accident.

1975 Clark v. Clark, 216 Va. 539, 221 S.E.2d 123.

Alcoholic intoxication.Evidence admitted as to amounts of alcohol defendant consumed prior to accident and that psychiatrist had advised defendant not to drink because alcohol impaired his judgment.

1975 Beck v. Commonwealth, 216 Va. 1, 216 S.E.2d 8.

Evidence of consumption of around seven beers in five-hour period is sufficient to raise inference of alcoholic intoxication.

1975 Arnold v. Reynolds, 215 Va. 431, 211 S.E.2d 46.

Evidence presented of host driver’s alcoholic intoxication plus other evidence showing extensive skid marks, both before and after leaving paved portion of highway for median strip proper issue for jury determination presented regarding gross negligence.

1974 Stroupe v. Commonwealth, 215 Va. 243, 207 S.E.2d 894.

Evidence on face of certificate that breathalyzer test was performed properly is sufficient to raise inference that analysis was valid. Statute makes certificate of breathalyzer test self-authenticating for purposes of admissibility.

1973 Peters v. Shortt, 214 Va. 399, 200 S.E.2d 547.

Alcoholic intoxication.Police officer testified that defendant had smell of alcohol on breath, speech slightly slurred and BAC was 0.13%. Pathologist allowed to testify without objection that person with BAC of 0.13% was intoxicated and unable to safely drive.

1973 United States Life Ins. Co. v. Mason, 214 Va. 328, 200 S.E.2d 516.

Certificates of blood alcohol tests provided for by Va. Code § 18-1-55.1 [now § 18.2-268] are inadmissible in civil proceeding. Likewise direct testimony as to results of postmortem blood alcohol tests are not admissible in civil cases.

1973 Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214.

Alcoholic intoxication.Evidence of defendant having odor of alcohol on breath was admissible since defendant admitted he had been drinking and there was testimony his eyes were glassy and he was staggering.

1973 Gumenick v. United States, 213 Va. 510, 193 S.E.2d 788.

Mere odor of alcohol on breath presents no question of alcoholic intoxication for determination by jury. Nor is absence from work proof of drunkenness.

1972 Facchina v. Richardson, 213 Va. 440, 192 S.E.2d 791.

Defendant made pre-trial motion to exclude evidence of defendant having smell of alcohol on breath. Motion denied without prejudice. Defendant failed to object to evidence at trial and as such objection waived.

1972 Monk v. Hess, 213 Va. 244, 191 S.E.2d 229.

Alcoholic intoxication.Guest drinking with driver; both boasted of speeds of 160 mph; guest boasted he could stay in car at any speed. Admissions that clearly evidence spirit of venturousness and amount to assumption of risk. There was testimony of smell of alcohol on breath of driver.

1972 Budzinski v. Harris, 213 Va. 107, 189 S.E.2d 372.

Motor vehicle guest case. Assumption of risk and contributory negligence re riding with driver known to be intoxicated to point driving impaired discussed. Evidence as to number of beers consumed and smell of alcohol on breath.

1972 Myers v. Sutton, 213 Va. 59, 189 S.E.2d 336.

Defendant drove car into office of service station; station operator injured. Testimony by police officer as to odor of alcohol on breath and partially concealed can of beer relevant to show defendant’s physical condition.

1972 Vanlandingham v. Vanlandingham, 212 Va. 856, 188 S.E.2d 96.

Evidence offered that driver had been drinking beer and egg nog that afternoon.

1972 Meade v. Belcher, 212 Va. 796, 188 S.E.2d 211.

Questions whether witness has been drinking are improper when there is no basis for such questions.

1971 Leslie v. Nitz, 212 Va. 480, 184 S.E.2d 755.

Testimony indicated that defendant had consumed several beers and was staggering.

1971 Penington v. Beamon, 211 Va. 493, 178 S.E.2d 511.

Defendant admitted that he had been drinking and that he was not used to it. Verdict for plaintiff upheld.

1970 Beale v. Jones, 210 Va. 519, 171 S.E.2d 851.

Testimony given as to defendant’s drunken condition.

1969 Hill v. Lee, 209 Va. 569, 166 S.E.2d 274.

Plaintiff said that he had single drink of wine which did not affect him. State trooper stated that after accident he observed strong odor of alcohol on breath. Mere odor of alcohol presents no question of intoxication for determination of jury unless coupled with other circumstances.

1968 Major v. Hoppe, 209 Va. 193, 163 S.E.2d 164.

Evidence of placing of beer and champagne in car and consumption of portion of it was held to be irrelevant. Evidence of blood alcohol level of plaintiff guest at 0.16 percent which was enough to impair ability of normal person was relevant as to issues of contributory negligence. Medical examiner expressed opinion that this blood alcohol content was enough to impair ordinary individual’s judgment and motor activity.

1968 Jordan v. Taylor, 209 Va. 43, 161 S.E.2d 790.

Trooper testified that two hours after collision, in emergency room of hospital, he smelled alcohol on defendant’s person. Jury properly told to disregard this testimony.

1967 Dickenson v. Tabb, 208 Va. 184, 156 S.E.2d 795.

Evidence of drinking but no evidence of impairment. Contributory negligence of passenger was jury issue.

1967 Shumate v. Commonwealth, 207 Va. 877, 153 S.E.2d 243.

DWI case. Evidence of reports of blood analysis does not violate constitutional right against self-incrimination. Virginia Code § 18.1-55.1 [now § 18.2-268] provides for taking and admissibility of certificates of blood alcohol analysis.

1966 Stoner v. Robertson, 207 Va. 633, 151 S.E.2d 363.

Gross negligence admitted by defendant who was driving at excessive speed, on wrong side of crooked and hilly road, and had been drinking. Although fellow passenger requested and was allowed to leave vehicle, plaintiff’s decedent, by remaining in vehicle, assumed risk as matter of law.

1966 Neblett v. Hunter, 207 Va. 335, 150 S.E.2d 115.

Tested blood sample was properly identified and its alcoholic content measured; resultant effects on plaintiff’s decedent’s capacities were explained by properly qualified expert who made test and were, therefore, properly admitted as evidence.

1966 Oliphant v. Snyder, 206 Va. 932, 147 S.E.2d 122.

Police officer not allowed to express opinion as to defendant’s intoxication. Mere odor of alcohol on one’s breath presents no question of intoxication for determination of jury. In this case, in addition to odor of alcohol being on defendant’s breath, he admitted to having had couple of drinks before accident and there was testimony that his conduct was unusual. This presented jury issue as to intoxication.

1966 Meade v. Meade, 206 Va. 823, 147 S.E.2d 171.

Medical testimony admitted, that based on blood alcohol content, ability to drive would be impaired. It is matter of common knowledge that operator of motor vehicle may become reckless from alcoholic intoxication.

1966 Cowles v. Zahn, 206 Va. 743, 143 S.E.2d 200.

Officer testified defendant had odor of alcohol on breath.

1965 Moon v. Hill, 206 Va. 437, 143 S.E.2d 892.

Testimony presented as to liquor and beer in car and smell of alcohol on defendant’s breath two hours after accident.

1965 Tomlin v. Worley, 206 Va. 344, 143 S.E.2d 866.

Evidence presented as to number of beers consumed but no showing how much was consumed by each party.

1965 Taylor v. Turner, 205 Va. 828, 140 S.E.2d 641.

Trial court excluded evidence of bootleg whiskey in automobile. Since defendant was found negligent for other reasons, exclusion of evidence was harmless.

1964 Speer v. Kellam, 204 Va. 893, 134 S.E.2d 300.

Alcoholic intoxication.Defendant admitted to investigating officer that he was under influence of alcohol.

1963 Jackson v. Prestage, 204 Va. 481, 132 S.E.2d 501.

Alcoholic intoxication.Defendant’s testimony that he had consumed four to five glasses of beer within one hour and twenty-five minutes before accident and officer’s testimony that his speech was erratic was admissible as to whether his condition affected his control.

1962 Eubank v. Spencer, 203 Va. 923, 128 S.E.2d 299.

Evidence of alcoholic intoxication not relevant where defendant admits liability and there is insufficient basis for punitive damages. Evidence showed that accident could have been caused by any driver not exercising due care. Intoxication not relevant to severity of impact.

1961 Davis v. Sykes, 202 Va. 952, 121 S.E.2d 513.

There was evidence of defendant having had three beers before accident. There was no claim that defendant was intoxicated and as such, there was no basis for instruction that defendant was not intoxicated. However, jury had right to consider whether consumption of beer had something to do with his going to sleep.

1961 Lambach v. Bailey, 202 Va. 620, 119 S.E.2d 305.

There was no direct proof that defendant had been drinking. There was evidence that his passenger had been drinking and there was strong odor of alcohol in car. These circumstances were sufficient to permit defendant to be cross-examined on this subject to test his credibility. If defendant wished to, he could have requested instruction that jury should disregard any evidence of his having been drinking.

1960 Abernathy v. Romaczyk, 202 Va. 328, 117 S.E.2d 88.

Evidence was presented of defendant’s having consumed alcohol shortly before accident.

1960 Ragsdale v. Jones, 202 Va. 278, 117 S.E.2d 114.

Investigating officer testified that although he detected odor of alcohol on defendant’s breath at scene of accident, defendant was not under influence of alcohol. This was held admissible.

1960 Baker v. Marcus, 201 Va. 905, 114 S.E.2d 617.

Driving auto under influence of alcohol is not basis for award of punitive damages.

1959 Dickerson v. Town of Christiansburg, 201 Va. 342, 111 S.E.2d 292.

Defendant arrested for driving while intoxicated. At trial it was improper for officer to express opinion as to whether defendant was intoxicated.

1959 Russell v. Hammond, 200 Va. 600, 106 S.E.2d 626.

Certificate of medical examiner as to blood alcohol content of defendant is not admissible.

1959 Bates v. Thompson, 200 Va. 501, 106 S.E.2d 728.

Two police officers stated that motorist was not under influence of alcohol although he had odor of alcohol on his breath.

1959 Brooks v. Hufham, 200 Va. 488, 106 S.E.2d 631.

In auto accident case, police officer testified that he detected strong odor of alcohol on breath of defendants. Certificate of BAC inadmissible.

1958 Ramsey v. Commonwealth, 200 Va. 245, 105 S.E.2d 155.

Referring to another case, expert not allowed to testify that person whose blood he examined was intoxicated to degree where he was not fit to drive.

1958 Laughlin v. Rose, 200 Va. 127, 104 S.E.2d 782.

Mere odor of alcohol on one’s breath is not sufficient to prove intoxication.

1958 Basham v. Terry, 199 Va. 817, 102 S.E.2d 285.

Mere odor of alcohol on one’s breath is not sufficient to prove intoxication.

1957 Bogstad v. Hope, 199 Va. 453, 100 S.E.2d 745.

Evidence indicated that defendant had consumed alcohol shortly before accident, he had strong smell of alcohol on breath, his eyes were blurred, and he was mumbling. This supported instruction on alcoholic intoxication. Proper wording of such instruction was set forth.

1957 Burks v. Webb, 199 Va. 296, 99 S.E.2d 629.

Odor of alcohol on decedent’s breath is not evidence of negligence and is inadmissible.

1957 Smith v. Smith, 199 Va. 55, 97 S.E.2d 907.

Possession of sleeping pills at time of auto accident not admissible.

1957 Mouser v. Griffith, 198 Va. 709, 96 S.E.2d 98.

Alcoholic intoxication.Police officers testified that they smelled whiskey on plaintiff’s breath and his clothes were saturated with whiskey, which evidently came from bottle in his pocket broken by impact. No one testified that plaintiff was drunk.

1955 Short v. Lang, 197 Va. 104, 87 S.E.2d 776.

Interrogatory into sobriety of defendant properly refused where plaintiff had ample other opportunity to inquire into such.

1955 Marshall v. Shaw, 196 Va. 678, 85 S.E.2d 223.

Alcoholic intoxication.It is common knowledge that use of intoxicants may affect manner in which one operates motor vehicle. Investigating officer should have been allowed to testify as to whether he detected alcohol on defendant’s breath and whether defendant had stated that he had been drinking.

1954 Daniels v. Transfer Co., 196 Va. 537, 84 S.E.2d 528.

Court referred to fact that one driver had been at party where alcohol was served prior to accident.

1953 Craighead v. Sellers, 194 Va. 920, 76 S.E.2d 212.

Alcoholic intoxication.Evidence that plaintiff had been seen three hours before accident “drunk” and “staggering” but “not down.” Police officer testified to smell of alcohol on plaintiff’s breath.

1953 Seymour & Burford Corp. v. Richardson, 194 Va. 709, 75 S.E.2d 77.

Evidence as to odor of alcohol on breath of driver was ruled irrelevant.

1952 Wright v. Estep, 194 Va. 332, 73 S.E.2d 371.

Alcoholic intoxication.Several witnesses testified that driver was under influence immediately after collision and had been seen throwing bottle of liquor from his car at scene of accident. After accident, he was arrested for driving while intoxicated.

1952 Hardiman v. Dyson, 194 Va. 116, 72 S.E.2d 361.

Voluntary alcoholic intoxication does not excuse negligence. Law of negligence as to intoxicated persons is same as that applicable to sober persons.

1952 Whichard v. Nee, 194 Va. 83, 72 S.E.2d 365.

Alcoholic intoxication.Court makes mention of plaintiff having had several drinks and stumbling. Plaintiff denied being intoxicated.

1951 Mitchell v. Wilkerson, 193 Va. 121, 67 S.E.2d 912.

Alcoholic intoxication.Evidence presented that defendant may have been intoxicated. His other acts of omission and/or commission presented jury question as to gross negligence. Driving motor vehicle while under influence of intoxicants is universally recognized as creating very serious hazard on highways.

1951 Atlantic Coast Line R.R. v. Withers, 192 Va. 493, 65 S.E.2d 654.

Court made mention of drinking of some passengers and fact that there was positive evidence that driver did not have anything to drink.

1951 Revell v. Deegan, 192 Va. 428, 65 S.E.2d 543.

Plaintiff testified to consuming two beers prior to accident.

1951 Bryant v. Bare, 192 Va. 238, 64 S.E.2d 741.

Witness expressed opinion about alcoholic intoxication of defendant.

1950 Caldwell v. Parker, 191 Va. 471, 62 S.E.2d 34.

Plaintiff had been drinking before he was involved in accident. Defendant claimed this was negligence proximately causing accident. However, witnesses stated that there was nothing about his actions that would indicate he had been drinking. Therefore, there was no probative evidence as to alcoholic intoxication and instruction regarding plaintiff’s alleged intoxication was properly refused.

1950 Guthrie v. Carter, 190 Va. 354, 57 S.E.2d 45.

Jury informed of plaintiff having consumed two beers.

1949 Lane v. Commonwealth, 190 Va. 58, 55 S.E.2d 450.

Drunkenness is matter of opinion depending on viewpoint of person.

1949 Bland v. City of Richmond, 190 Va. 42, 55 S.E.2d 289.

Alcoholic intoxication.Witness testified in this criminal case that defendant talked with thick tongue and was under influence of alcohol. Defendant did not object at trial. It is reasonable inference that this conclusion was based on general appearance and conduct of defendant.

1948 Marks v. Ore, 187 Va. 146, 45 S.E.2d 894.

Trial court allowed police officer to testify that he detected odor of alcohol on plaintiff’s breath.

1942 Harrell v. City of Norfolk, 180 Va. 27, 21 S.E.2d 733.

Alcoholic intoxication.Defendant took medicine which lowered his tolerance to alcohol. He nevertheless was intoxicated from use of alcohol.