Rights of Drunk Driving Accident Victims in Oregon

Getting hit by a drunk driver puts you in two legal systems at once. The state can prosecute the driver for a crime, and you can pursue money for your injuries. Those two cases run on separate tracks, follow different rules, and are decided by different people. Oregon shapes each of them in specific ways, and a few of those rules carry deadlines much shorter than the two years you have to file a lawsuit.

Here is what actually applies in Oregon.

The criminal case and your civil claim are different things

In Oregon a person commits driving under the influence of intoxicants (DUII) if they drive with a blood alcohol content of 0.08 percent or more, or while under the influence of any intoxicant. A first offense is a Class A misdemeanor, and it becomes a Class C felony when the driver has two prior DUII convictions in the previous 10 years.¹ That prosecution is run by a district attorney and its purpose is to punish the driver. A guilty verdict does not, by itself, pay your hospital bill.

What the criminal case can do for you directly is order restitution. Under ORS 137.106, when someone is convicted of a crime that caused economic damages, the district attorney must present evidence of those damages, and the court "shall" enter a judgment requiring the defendant to pay the victim the full amount of their economic losses.² Restitution covers losses you can put a number on, such as medical bills, lost wages, and vehicle damage. It does not cover pain and suffering, and it does not replace a civil case. If the prosecutor cannot present the figures at sentencing, they have 90 days to come back with a supplemental judgment.²

You generally have two years, but watch the shorter deadlines

A personal injury claim from an Oregon car crash must be filed within two years of the crash under ORS 12.110(1).³ A claim for damage to your vehicle or other property gets a longer window, six years, under ORS 12.080(4).⁴ Those are the outer limits. Several of the routes below close much sooner.

Suing the bar or host who over-served the driver

Oregon lets you reach beyond the driver. A bar, restaurant, or private host who served alcohol to the person who hit you can be held liable, though the statute makes it hard and sets a trap for the unwary. Under ORS 471.565 you have to prove by clear and convincing evidence both that the licensee, permittee, or social host served alcohol to the driver while the driver was visibly intoxicated, and that you did not substantially contribute to that intoxication.⁵

The trap is the notice deadline. You must give the server written notice, or actual notice, of your claim within 180 days of the injury, or within 180 days of when you reasonably should have discovered the claim.⁵ Miss that 180-day window and the claim against the bar is gone, even though your two-year deadline against the driver is still wide open. If a business over-served the person who hit you, this is the deadline to protect first.

Punitive damages, and where the money actually goes

Drunk driving is one of the clearer cases for punitive damages, which punish especially bad conduct rather than compensate you. Oregon allows them only on clear and convincing evidence that the defendant acted with malice or with "a reckless and outrageous indifference to a highly unreasonable risk of harm" and conscious indifference to the safety of others.⁶ Driving while impaired can meet that standard.

There is a catch worth knowing before you count on it. Under ORS 31.735 a punitive award in Oregon is split three ways: 30 percent goes to you (your attorney's fee comes out of that share and is capped at 20 percent of the total award), 60 percent goes to the state's Criminal Injuries Compensation Account, and 10 percent goes to the State Court Facilities and Security Account.⁷ Most of a punitive award funds the state rather than your recovery. Your compensatory damages, the money for your injuries and losses, stay yours in full.

There is no cap on your injury damages

Oregon has a statute, ORS 31.710, that says noneconomic damages (pain, suffering, loss of enjoyment of life) are capped at $500,000. In an ordinary car crash negligence case that cap does not apply. In Busch v. McInnis Waste Systems, Inc., 366 Or 628 (2020), the Oregon Supreme Court held the cap unconstitutional as applied to a common-law negligence claim, which is what a drunk driving injury case is.⁸ A jury can award the full value of what you lost.

If you were partly at fault

Oregon uses modified comparative negligence. Under ORS 31.600 you can still recover as long as your share of the fault is not greater than the combined fault of everyone else; once you reach 51 percent, you recover nothing. Below that line your award drops by your percentage of fault.⁹ If your damages are $200,000 and you are found 20 percent at fault, you collect $160,000.

When the drunk driver can't cover what they did

Oregon's minimum liability limits are low. A driver has to carry only $25,000 for injury to one person, $50,000 per crash, and $20,000 for property damage under ORS 806.070.¹⁰ A serious drunk driving injury passes those numbers fast, which is why your own policy matters.

Two coverages on your own auto policy help here. Personal injury protection (PIP) is mandatory in Oregon and pays regardless of who was at fault: at least $15,000 in medical expenses incurred within two years of the crash, 70 percent of lost wages up to $3,000 per month for as long as 52 weeks, and up to $5,000 in funeral expenses, under ORS 742.524.¹¹ PIP is the fast money that keeps bills current while everything else is sorted out.

The real backstop against an underinsured drunk driver is uninsured and underinsured motorist (UM/UIM) coverage. Oregon requires it on every auto liability policy, and your UM/UIM limits must equal your bodily injury liability limits unless you signed a written election for lower limits, under ORS 742.502.¹² If the driver who hit you carried the state minimum and your medical bills run to $120,000, UM/UIM is often what pays the gap. Damage to your vehicle itself, including any diminished value claim, is handled apart from your injury claim.

Crime victims' compensation as a last resort

Because a drunk driving crash is a crime, you may also qualify for Oregon's Crime Victims' Compensation program, run by the Department of Justice. It helps victims of a compensable crime that caused physical injury and can cover medical and counseling costs, lost earnings, and funeral expenses, subject to category limits.¹³ You generally must apply within one year of the injury under ORS 147.015, and the program pays last, so it looks to your insurance and any restitution first.¹⁴

What to do next

Get the official police crash report for your collision; it captures the impairment evidence your civil claim will rely on. Because the dram shop notice deadline runs only 180 days and evidence from the scene fades quickly, talking with an Oregon personal injury attorney early keeps every one of these options open.

This article is general information about Oregon law, not legal advice. For guidance about your own situation, talk with a licensed Oregon attorney.

Sources

1. Oregon Revised Statutes 813.010, Driving under the influence of intoxicants; penalty. https://oregon.public.law/statutes/ors_813.010

2. Oregon Revised Statutes 137.106, Restitution to victims. https://oregon.public.law/statutes/ors_137.106

3. Oregon Revised Statutes 12.110, Actions for certain injuries to person not arising on contract. https://oregon.public.law/statutes/ors_12.110

4. Oregon Revised Statutes 12.080, Action on certain contracts or liabilities; injury to personal property. https://oregon.public.law/statutes/ors_12.080

5. Oregon Revised Statutes 471.565, Liability for providing or serving alcoholic beverages to intoxicated person; notice of claim. https://oregon.public.law/statutes/ors_471.565

6. Oregon Revised Statutes 31.730, Standards for award of punitive damages. https://oregon.public.law/statutes/ors_31.730

7. Oregon Revised Statutes 31.735, Distribution of punitive damages. https://oregon.public.law/statutes/ors_31.735

8. Busch v. McInnis Waste Systems, Inc., 366 Or 628, 468 P3d 419 (2020), Oregon Supreme Court. https://law.justia.com/cases/oregon/supreme-court/2020/s066098.html

9. Oregon Revised Statutes 31.600, Comparative negligence standards. https://oregon.public.law/statutes/ors_31.600

10. Oregon Revised Statutes 806.070, Amounts of financial responsibility required. https://oregon.public.law/statutes/ors_806.070

11. Oregon Revised Statutes 742.524, Personal injury protection benefits. https://oregon.public.law/statutes/ors_742.524

12. Oregon Revised Statutes 742.502, Uninsured motorist coverage required. https://oregon.public.law/statutes/ors_742.502

13. Oregon Department of Justice, Compensation for Victims of Crime. https://www.doj.state.or.us/crime-victims/crime-victim-compensation/compensation-for-victims-of-crime/

14. Oregon Revised Statutes 147.015, Eligibility for compensation. https://oregon.public.law/statutes/ors_147.015