Rights of drunk driving accident victims in Delaware

If a drunk driver hurt you on a Delaware road, two cases start at the same time and they run on separate tracks. The state can prosecute the driver. You can bring a civil claim for your medical bills, lost income, and pain. A criminal conviction can strengthen your civil claim, but you don't need one to recover money damages, and an acquittal doesn't close the courthouse door on you.

The problem is still a big one here. Across the country, 12,429 people were killed in 2023 in crashes that involved an alcohol-impaired driver, roughly 30% of all traffic deaths that year.¹ Delaware's Office of Highway Safety has reported more than 4,000 DUI arrests in a single year, with first-time offenders accounting for 88% of them.² Below is what Delaware law actually gives a victim, tied to the statute or agency behind each rule.

How long you have to file

You generally have two years from the date of the crash to file a personal injury lawsuit in Delaware.³ Miss it, and the court will almost always throw the case out no matter how strong it is. Evidence fades long before then too, so the deadline is not the moment to aim for.

Two exceptions matter after a drunk driving crash. If the injured person was a child, the clock is paused: under Delaware's tolling statute, someone hurt while under 18 has until three years after turning 18 to sue.⁴ And a claim for the damage to your vehicle and other property carries its own two-year limit, measured from the accident.⁵

Your own insurance pays first

Delaware requires personal injury protection (PIP) on every registered vehicle, and it pays out no matter who caused the crash.⁶ PIP covers your medical bills and a share of your lost earnings up to at least $15,000 per person and $30,000 per accident, plus up to $5,000 in funeral costs, for expenses you run up within two years of the crash.⁶ There is no injury threshold to clear first, and using PIP does not stop you from suing the drunk driver for everything it doesn't cover.

The statute also puts your own insurer on a schedule. It has to send you a claim form within 10 days of learning about the crash, and it has to pay or deny a completed claim within 30 days.⁷ If it drags its feet, the overdue amount collects interest at 1.5% a month, rising to 2% and then 2.5% the longer it sits unpaid.⁷ Keep your bills and wage records, and write down the dates.

Claims against the drunk driver

Delaware is an at-fault state, so the driver who caused the crash, and that driver's insurer, is responsible for your losses. Every Delaware policy has to carry at least $25,000 per person and $50,000 per accident for injuries, plus $10,000 for property damage.⁸ Those are floors, and serious DUI injuries routinely blow past them, which is why the coverage on your own policy (below) matters so much.

There is no cap on the compensatory damages you can recover in an ordinary Delaware car crash case. Medical costs, future care, lost earning power, and pain all count. Drunk driving also opens the door to punitive damages, which Delaware allows when the defendant's conduct was willful, wanton, or reckless. Choosing to drive impaired routinely meets that bar. The heightened punitive-damages rules some people have heard about live in a separate statute that applies only to medical-negligence suits, not car crashes.⁹

One thing that can shrink a recovery is your own share of fault. Delaware follows modified comparative negligence: you can still recover as long as your negligence was not greater than the other driver's, and your award is cut by your percentage of fault.¹⁰ Cross the 50% line, and you recover nothing. Against a driver who was over the limit, that rule rarely hurts a sober victim, but insurers still try to shift blame, so it helps to know where the line sits.

The criminal case moves on its own. A driver who injures someone while impaired can be charged with vehicular assault in the second degree, a class A misdemeanor, and with vehicular assault in the first degree, a class F felony, when the injuries are serious.¹¹¹² That prosecution belongs to the state, not to you, and it is about punishment rather than paying your bills. Your civil claim is where your compensation comes from.

When the driver's coverage runs out

Drunk drivers are often underinsured, and that is where your own policy saves the case. Delaware law builds uninsured and underinsured motorist (UM/UIM) coverage into every auto policy at the same limits as your liability coverage, unless you signed a written rejection on the insurer's own form.¹³ If you never signed that rejection, you have it. Insurers also have to offer you the option to buy higher UIM limits, up to $100,000 per person and $300,000 per accident.¹³ After a serious DUI crash, this coverage frequently pays more than the at-fault driver's policy does, so pull your own declarations page early.

Delaware has no dram shop law

Many people assume the bar that overserved the driver can be sued. In Delaware, usually it can't. The Delaware Supreme Court held in Wright v. Moffitt that the state has no dram shop cause of action, by statute or common law, and that creating one is a job for the legislature.¹⁴ So a tavern or a party host that kept pouring generally can't be held civilly liable to the person the drunk driver later hurt. Your claim runs against the driver, the driver's insurer, and your own UM/UIM coverage, and the driver's decision to drink and drive is exactly what supports the punitive-damages claim against them.

Evidence, the crash report, and your car

Get the crash report. Delaware State Police, Traffic Operations Section, sells the standard report for $25 and a fatal-crash report for $60, by mail.¹⁵ The report anchors the who, when, and where, and you can read how to request yours on the Delaware crash reports page.

Impairment is rarely the driver's only mistake. If they were also on the phone, that matters: Delaware bans holding a phone while driving for every driver, with primary enforcement and a $100 fine for a first offense.¹⁶ A cited handheld violation is one more piece of negligence to stack on the DUI. Your car itself may also be worth a separate claim. Even after a clean repair, a vehicle with a wreck on its record sells for less, and Delaware lets you pursue that loss. The Delaware diminished value page covers how that claim works.

Getting help

Delaware's two-year deadline, its PIP timelines, and the fine print on UM/UIM rejection forms all reward moving early. If you want a lawyer to deal with the drunk driver's insurer and your own, you can start with the legal directory. Bring the crash report, your insurance declarations page, and every medical bill you have.

This article is general information, not legal advice.

Sources

1. NHTSA, Traffic Safety Facts, 2023 Data: Alcohol-Impaired Driving. https://crashstats.nhtsa.dot.gov/Api/Public/Publication/813713

2. Delaware Office of Highway Safety, Impaired Driving. https://ohs.delaware.gov/impaired.shtml

3. Delaware Code, 10 Del. C. § 8119 (personal injury statute of limitations). https://delcode.delaware.gov/title10/c081/index.html

4. Delaware Code, 10 Del. C. § 8116 (tolling for a person under the disability of infancy). https://delcode.delaware.gov/title10/c081/index.html

5. Delaware Code, 10 Del. C. § 8107 (property damage statute of limitations). https://delcode.delaware.gov/title10/c081/index.html

6. Delaware Code, 21 Del. C. § 2118 (required PIP coverage and limits). https://delcode.delaware.gov/title21/c021/sc01/index.html

7. Delaware Code, 21 Del. C. § 2118B (prompt processing of PIP claims and interest penalties). https://delcode.delaware.gov/title21/c021/sc01/index.html

8. Delaware Code, 21 Del. C. § 2902(b)(2) (minimum motor vehicle liability limits). https://delcode.delaware.gov/title21/c029/sc01/index.html

9. Delaware Code, 18 Del. C. § 6855 (heightened punitive-damages standard, medical negligence only). https://delcode.delaware.gov/title18/c068/sc06/index.html

10. Delaware Code, 10 Del. C. § 8132 (comparative negligence). https://delcode.delaware.gov/title10/c081/index.html

11. Delaware Code, 11 Del. C. § 628A (vehicular assault in the second degree). https://delcode.delaware.gov/title11/c005/sc02/

12. Delaware Code, 11 Del. C. § 629 (vehicular assault in the first degree). https://delcode.delaware.gov/title11/c005/sc02/

13. Delaware Code, 18 Del. C. § 3902 (uninsured and underinsured motorist coverage). https://delcode.delaware.gov/title18/c039/index.html

14. Wright v. Moffitt, 437 A.2d 554 (Del. 1981), via CourtListener. https://www.courtlistener.com/opinion/2058818/wright-v-moffitt/

15. Delaware State Police, Traffic Operations Section (crash report requests and fees). https://dsp.delaware.gov/traffic-unit/

16. Delaware Code, 21 Del. C. § 4176C (handheld electronic communication devices while driving). https://delcode.delaware.gov/title21/c041/sc09/index.html