Virginia Code § 8.01-44.5 states that punitive damages may be awarded if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct is found to be so willful and wanton as to evidence a conscious disregard for the rights of others. In motor vehicle accidents, the willful and wanton conduct may be established by the following:

     1. Evidence of a blood alcohol of .15% or more at the time of the accident.

     2. The Defendant’s intoxication was a proximate cause of the accident.

     3. The Defendant knew or should have known, before or while drinking, that his ability to operate a motor vehicle   would be impaired or while operating a motor vehicle defendant knew or should have known that his ability to operate a motor vehicle was impaired.

Virginia lawmakers recently passed Senate Bill 1112.  The bill amends § 8.01-44.5 to make it easier to admit evidence to support a claim for punitive damages. The amendment creates a rebuttable presumption that the blood alcohol concentration at the time of the incident was at least as high as the test result when the test was administered within three hours of the incident causing injury or death.  Similarly, the statute has been amended to allow that a party may submit either a copy of a certificate issued by the person administering the test or a certificate of analysis for a blood test. These certificates will constitute prima facie evidence of the facts they contain.

A refusal to take the blood alcohol test does not eliminate the application of Virginia Code § 8.01-44.5 on the issue of evidence of punitive damages.  The refusal to submit to the test can be utilized at trial in a civil case in the pursuit of punitive damages as long as the other criteria are met under § 8.01-44.5.  A certified copy of the court’s determination of an unreasonable refusal pursuant to § 18.2-268.3, in addition to any other form of proof, shall be prima facie evidence that the defendant unreasonably refused to submit to the test. The amendments to the statute will become effective July 1, 2013.