Two cases running side by side
A DWI prosecution is brought by the state to punish the driver, while a civil lawsuit is brought by the injured person to recover compensation. The two can move forward at the same time, and a civil claim does not depend on a conviction, since the standard of proof is lower. A guilty plea or conviction can still be useful evidence. Prosecutors and victim advocates may contact you about the criminal case, and any restitution ordered there is separate from what a civil case can address. In New York, no-fault benefits cover basic medical and wage losses first, and the serious injury threshold applies to pain and suffering claims against the driver, as it would after any car accident.
Parties beyond the driver
The driver is the obvious defendant, but others may share responsibility. New York has a dram shop law that can allow claims against a bar, restaurant, or store that unlawfully sold alcohol to a visibly intoxicated person who then caused injury, and separate rules address furnishing alcohol to people under the legal drinking age. If the driver was working at the time, an employer may be involved, and the vehicle's owner can be liable under New York law in many cases even when someone else was driving. Finding out where the driver was drinking before the crash is often an early investigative step, because receipts and video at those places do not last long.
Evidence and first steps
Gather the police accident report, the names of officers and witnesses, photos of the scene and vehicles, and every medical record. Keep track of missed work and out-of-pocket costs. Do not contact the driver or the driver's family to talk about the crash, and let your lawyer handle communications with insurers. Early in the matter we look at the insurance available, including the driver's policy and your own supplementary coverage, whether a dram shop claim is worth investigating, and whether punitive damages may be sought against the driver. We also map the deadlines, since different defendants can carry different filing periods, and claims against public entities require an early notice of claim.
