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Drunk Driving is Negligence Per Se Under Texas Law

There is nothing more dangerous on the road than a drunk driver. When a drunk driver hurts someone, clearly this is a negligent act warranting a lawsuit.

But, in the eyes of Texas courts, it goes further than that; driving while intoxication rises to the level of negligence per se. In this article, our Texas car accident attorneys explain how negligence per se works and how you can use that theory of liability to hold the drunk driver who hurt you accountable.


Questions answered on this page:

  • How do we prove liability in a DUI accident?
  • What is negligence per se?
  • How do I receive compensation for my injuries?
  • Why do I need an experienced attorney?

The Difference Between Negligence and Negligence Per Se

When someone violates the unwritten social contract and behaves in an unreasonably dangerous fashion, the courts call that negligence. In order to win a case wherein you’re arguing that the person who hurt you was negligent, you have to explain first that they had a duty not to hurt you (per the aforementioned social contract), that they breached that duty, and that it cause you to incur losses. But certain types of negligent actions (those which are also a violation of a written law) are seen by the court as a form of “super negligence,” if you’ll pardon the simplistic explanation. These types of misconduct are called negligence per se.

Being able to label some particular wrongful conduct as negligence per se rather than ordinary negligence changes the way that you argue the case in court, and for the better. Rather than having to explain all of that interpretive stuff about the social contract and duties and whatnot, you must simply show that the defendant broke the law they’re accused of breaking, and that, in doing so, they caused you to suffer harm. In other words, when the court recognizes that some act rises to the level of negligence per se instead of normal negligence, they create a shortcut to liability by allowing you the opportunity to ask the jury to agree with a much simpler concept. That may not sound like much, but it makes a hge difference.

As mentioned, Texas courts have deemed it appropriate to argue that drunken driving is negligence per se, so, as long as the case is plead correctly, you’re afforded an opportunity to really take a drunk driver to task.

What laws apply to a drunk driving case in Texas?

The Texas Penal Code says:

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.
(d) If it is shown on the trial of an offense under this section that an analysis of a specimen of the person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, the offense is a Class A misdemeanor.

It is this law that is violated whenever a drunk driver gets behind the wheel and then causes an accident. That violation is what allows the case to be pursued on theory of negligence per se rather than ordinary negligence.

How our attorneys investigate drunk driving accidents.

The first thing that we’re going to do when you bring us on board for your case is to look at the circumstances surrounding the accident. Was it at night or raining? How many people were involved? Did the police conduct a proper DUI assessment on the driver that struck you? Did the police document the accident correctly? Were Emergency Medical Services called?

One of the most important elements in proving liability in a DUI injury case is making sure that the police did their job. We have independent top-notch accident investigators that will make sure that protocol was followed and that all of the information is correct. Sometimes, police make mistakes and may not, for example, accurately document the driver’s blood alcohol content. Maybe instead of putting “.12” in the accident report, the police write down “.012”. Simply moving the decimal place one spot accidentally can impact the evidence in a case. This clerical error would then bring further questions as to how proficient the rest of the officer’s report was, making the defense attorney’s life a little easier.

Not a Moment to Waste The importance of a prompt investigation...Read More >

We’ve Been Fighting for DUI/DWI Accident Victims for Over 25 Years

We respect the hard work that police do every day to make sure that we are able to move about free and safe in our neighborhoods and roadways, but, they make mistakes and clerical errors. Also, insurance companies don’t have to give you money if the driver that they are covering hits you or a loved one, even if they were DUI/DWI. Not unless you make them in court.

At Grossman Law Offices, we’re not going to leave you sitting by your phone waiting for emails and phone calls. We’re a team that takes pride in being there for those who may be unsure of what their next step may be. Please, if you or someone you love has been involved affected by an alcohol related accident, gives us a call: (855) 326-0000 (toll free).


Related Articles For Further Reading:

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