Injury Claims for a Motorcyclist Facing a DWI

Attorney Answer

A DWI does not automatically end an injury claim in Texas. It can end it, though, if a jury puts more than half the responsibility for the crash on you — and what you say in the injury claim can be used against you in the criminal case. Get a criminal-defense lawyer before you talk to anyone about the crash, including your own insurance company.

Texas apportions fault by percentage rather than treating it as all-or-nothing. Tex. Civ. Prac. & Rem. Code § 33.003 has the trier of fact assign a percentage of responsibility to each claimant, defendant, settling person, and designated responsible third party. Under § 33.012(a) the court reduces a claimant's damages by a percentage equal to the claimant's own percentage of responsibility. And § 33.001 provides that a claimant may not recover damages if his percentage of responsibility is greater than 50 percent. That is the whole shape of your civil case. Your intoxication is not a switch that turns recovery off; it is evidence that goes into the percentage. If the other driver caused the collision and you are assigned a minority share, you still recover, reduced by your share. If you are assigned more than half, you recover nothing.

The two cases ask different questions, which is why the outcome of one does not settle the other. Tex. Penal Code § 49.04(a) makes it an offense to be intoxicated while operating a motor vehicle in a public place, and § 49.01(2) defines intoxicated as not having the normal use of mental or physical faculties by reason of alcohol, a controlled substance, a drug, a dangerous drug, a combination of those, or any other substance, or as having an alcohol concentration of 0.08 or more. Notice what that does not ask: it does not ask who caused the crash. A DWI conviction establishes that you were intoxicated while driving. It does not establish that your intoxication caused someone to hit you. Those are separate findings and the other side will work hard to blur them.

There is a coverage route that does not wait on any of this. Under Tex. Ins. Code § 1952.152 personal injury protection must be provided unless it is rejected in writing, and § 1952.155(a) makes those benefits payable without regard to the fault or nonfault of the named insured and without regard to any collateral source. If PIP is on your policy it pays medical bills and some lost income now, whatever the fault fight turns into later. And if the driver who hit you has no coverage, Tex. Ins. Code § 1952.101(b) requires uninsured and underinsured motorist coverage in or supplemental to a Texas auto liability policy, and § 1952.101(c) removes it only where a named insured rejected it in writing.

What you can do

1. Get medical care and stay with it. Motorcycle injuries are often documented badly at first, and gaps in treatment are used as gaps in injury.

2. Talk to a Texas criminal-defense lawyer before you talk to anyone else about the crash. Do not write out your account and do not give a recorded statement to any insurer, including your own, until that lawyer says the order is safe.

3. Keep what already exists — the gear you were wearing, the damaged motorcycle, photographs already on your phone, and any paperwork you were handed. Do not repair or dispose of the bike yet.

4. Find your own policy and look at the declarations page for PIP and for uninsured/underinsured motorist coverage.

5. Ask a Texas personal injury attorney to open and run the injury claim, and make sure that lawyer and the criminal-defense lawyer talk to each other. Two lawyers working in ignorance of one another is how these cases go wrong.

*Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts — how the collision actually happened, separate from the DWI — is worth more than any general guidance, including this page.*

⏱ Time limits apply. Tex. Civ. Prac. & Rem. Code § 16.003(a) generally gives two years from the day the claim accrues for personal injury and property damage. That civil clock does not pause while a criminal case is pending, which catches people out. Your own policy's notice deadlines are shorter still. When each clock started depends on your facts — have a Texas attorney review the dates now.