What if law enforcement failed to detain a drunk driver?

Home » What if law enforcement failed to detain a drunk driver?
April 06, 2015
Edward Smith


Law enforcement does a wonderful job in keeping our streets safe. But from time to time, severe injury and even death has occurred when law enforcement failed to detain a drunk driver.

The most commonly litigated cases that have a successful outcome in behalf of the injured party that involve this area of law tends to be cases when law enforcement officials were aware of the drunken state of an individual and allowed the individual to drive away which subsequently led to severe injury or death of another person.

The court has ruled that in order to find negligence on the part of law enforcement the following must be proven:

  • A close connection between the victim’s injury and the intoxicated drivers’ conduct
  • Blame associated with the conduct of the intoxicated driver
  • The foreseeability of harm to the victim
  • Certainty that the victim suffered injury

When public agencies are involved such as government employees, including police officers, deputies or sheriffs, the court will also consider the extent of power of the government employee, the limitations the agency faces due to their budget and what role they are assigned by law.

The court will examine each case individually to determine if law enforcement failed to properly detain a drunk driver. The court will require that some of the below issues be clearly demonstrated:

  • Did the law enforcement officials know the driver was intoxicated or know that the intoxicated person intended to drive?
  • Was the failure of action on behalf of the law enforcement official  in violation of a statue, ordinance or regulation?
  • Did the lack of action by the law enforcement officer increase the risk of harm?
  • Was their financial resources available to the governmental agency in question to detail all drivers believed to be under the influence of alcohol?
  • Did the officer have authority to impound the intoxicated driver’s vehicle?
  • Did the officer have authority to confiscate the keys of an intoxicated driver’s car?
  • Was it practical to detain the intoxicated driver in view of the circumstance  that existed at the time?
  • Was it foreseeable that the intoxicated driver would not obey the law officer’s instructions not to drive?
  • Was their other law enforcement personnel available at the time to respond to a call for assistance?

In order for the court to rule either in favor of the injured party or in favor of the law enforcement agency will they will also consider the following circumstances:

  • Did the officer fail to recognize the signs on intoxication?
  • Did the officer fail to administer sobriety tests?
  • Did the officer fail to arrest an intoxicated driver who was driving erratically?
  • Did the officer fail to arrest a drunk driver who drove on the wrong side of the road or who made an improper driving maneuver?
  • Did the agency fail to alert on duty officers of the intoxicated person’s license or type of vehicle?
  • If the intoxicated person was a minor, did the officer fail to notify the parents or guardian of the minor’s condition?
  • Did the officer order or permit the drunk driver’s companion to drive? If so, did they ascertain the sobriety of the person ordered to drive the vehicle?
  • Did the officer order the intoxicated person to leave the premises and observe him drive away?
  • Did the arresting officer release him into the custody of another law enforcement agency?
  • Did the officer fail to supervise the intoxicated person after their arrest?

If you believe you have a claim against law enforcement officials due to their failure to detain a drunk driver, you should contact a personal injury lawyer immediately.  In California, such claims have a Short time limit. You must file a claim with an appropriate governmental unit within 180 days of the accident.

Further, after that there are additional time limits that apply if the claim is rejected in which to file suit.

Additionally, these claims nearly always go to trial.  Therefore, when searching for a personal injury attorney or wrongful death lawyer make sure that their office has handled trials in the past.

Significant costs will be involved in handling this type of case and you are in your right to ask if the lawyer you are thinking of hiring has the funds to cover the costs that will be involved.

My firm, the Edward A Smith Law Offices, has successfully resolved claims involving governmental agencies and we do not shy away from trial.  My practice was established in 1982 and exclusively handles wrongful death and serious personal injury claims.  I encourage people to be diligent in learning about the firm they plan on hiring.  You can learn more about my firm through our website, Google reviews, Yelp, and Avvo.

If you wish to contact me you can do so via phone (800) 404-5400 or (916) 921-6400.  If you want, you can also email me directly at [email protected].  I am happy to provide free advice and you are more than welcome to schedule a free no-obligation consultation with me.

Photo Attribution: By California Highway Patrol (Own work) [Public domain], via Wikimedia Commons