A Wisconsin woman and her daughter were pushing their car after running out of gas when they were struck by another car. The driver of that car then fled the scene of the accident, leaving the woman and her daughter injured and helpless. The woman later died at the hospital as a result of the injuries she sustained in the car accident. Her daughter is recovering from her injuries.
Two passengers in the offending driver's car reported to police that they had seen the man drinking shots of tequila prior to driving. However, due to the passage of time since the accident, the police may not be able to prove the man was drunk at the time of the accident. However, authorities have charged the man with homicide by negligent operation of a vehicle, hit-and-run resulting in death, and hit-and-run causing injury. The victim's family might also be considering a wrongful death civil lawsuit against the driver.
Wisconsin authorities are often able to prove that someone was intoxicated at the scene of an accident by conducting a field sobriety test and ordering a blood alcohol test. However, when a driver flees the scene of a car accident and is not found until hours later, having proof of intoxication through a blood alcohol test may be impossible. Therefore, authorities are currently unable to charge the man with OWI.
Being able to prove the man was drunk in a criminal court and proving the same fact in civil court are two different things. The burden of proof in civil cases is not as stringent as in criminal cases, and indirect evidence such as the testimony of the two women and other possible witnesses may be enough evidence in a wrongful death action to prove the man was drunk. As the family attempts to put their lives back together, they may benefit from advice about how to proceed with a wrongful death action in connection with this car accident. While any criminal conviction may be helpful in civil court, it may not be required to prove negligence in a wrongful death action.
Source: Waukesha, WI Patch, "$250K Bail Set for Man Accused of Killing Woman in Car Crash," Sarah Millard, July 23, 2012