Intoxicated driving crashes
Hit by a Drunk or Drugged Driver in New York: What Victims Should Know
An impaired driver may face a criminal case, but that case does not pay your bills. Here is how no-fault, the serious injury rules, dram shop law and your own coverage fit together.
By Michael A. Licatesi · Published · Updated
The short answer
- The criminal DWI case and your injury claim are separate. Compensation comes through insurance and a civil claim that you or your family bring.
- Start with no-fault. Give written notice to the no-fault insurer within 30 days of the crash.
- Pain and suffering requires a "serious injury." For actions commenced on or after May 26, 2026, the old 90/180-day category no longer counts.
- The driver may not be the only one responsible. A vehicle owner, a seller that unlawfully sold alcohol, or someone who unlawfully supplied alcohol to a driver under 21 may also be liable.
- The general deadline to sue is three years. Some deadlines are much shorter.
This is general information about New York law, not legal advice about your situation.
How dangerous impaired driving is
In 2023, 12,429 people were killed in U.S. traffic crashes in which at least one driver was alcohol-impaired, meaning a blood alcohol concentration (BAC) of .08 or higher. That was 30 percent of all U.S. traffic deaths, or one death every 42 minutes, according to NHTSA's Alcohol-Impaired Driving: 2023 Data fact sheet.
For New York, the same NHTSA report counts 1,114 traffic deaths in 2023. Of those, 325 (29 percent) happened in crashes where the highest driver BAC was .08 or higher. NHTSA cautions that these figures show an alcohol-impaired driver was involved, not that alcohol caused each crash.
Survivors often face months of treatment and rehabilitation, time away from work and lasting limits on daily life.
What New York's impaired driving law covers
Vehicle and Traffic Law 1192 lists the main offenses. For a victim, the key point is that alcohol, drugs, or both can make a driver legally impaired.
1192(1): driving while ability impaired
What it prohibits Driving while your ability to drive is impaired by alcohol
1192(2): driving while intoxicated, per se
What it prohibits Driving with a BAC of .08 or more
1192(2-a)(a): aggravated DWI
What it prohibits Driving with a BAC of .18 or more
1192(3): driving while intoxicated
What it prohibits Driving in an intoxicated condition
1192(4) and (4-a): drug impairment
What it prohibits Driving while ability is impaired by a drug, or by drugs combined with alcohol
| Section | What it prohibits |
|---|---|
| 1192(1): driving while ability impaired | Driving while your ability to drive is impaired by alcohol |
| 1192(2): driving while intoxicated, per se | Driving with a BAC of .08 or more |
| 1192(2-a)(a): aggravated DWI | Driving with a BAC of .18 or more |
| 1192(3): driving while intoxicated | Driving in an intoxicated condition |
| 1192(4) and (4-a): drug impairment | Driving while ability is impaired by a drug, or by drugs combined with alcohol |
The criminal case and your injury claim are separate
The criminal case and your injury claim are separate processes. A criminal court can order a convicted defendant to make restitution or reparation for a victim's actual out-of-pocket loss (Penal Law 60.27), but that does not replace your insurance claims or a civil claim for losses such as pain and suffering.
What it decides
Criminal DWI case Whether the driver committed an offense, such as a VTL 1192 violation
Your civil injury claim Whether the driver, and anyone else responsible, must pay for your injuries and losses
Proof that matters
Criminal DWI case Police observations and chemical test results
Your civil injury claim Fault, a qualifying injury and documented losses
Where money for you comes from
Criminal DWI case That is not the purpose of the case
Your civil injury claim No-fault, the at-fault driver's liability insurance, other liable parties and your own UM or SUM coverage
Deadline
Criminal DWI case Set by the criminal court process
Your civil injury claim Generally three years to sue (CPLR 214), with earlier deadlines for no-fault notice and some claims
| Question | Criminal DWI case | Your civil injury claim |
|---|---|---|
| What it decides | Whether the driver committed an offense, such as a VTL 1192 violation | Whether the driver, and anyone else responsible, must pay for your injuries and losses |
| Proof that matters | Police observations and chemical test results | Fault, a qualifying injury and documented losses |
| Where money for you comes from | That is not the purpose of the case | No-fault, the at-fault driver's liability insurance, other liable parties and your own UM or SUM coverage |
| Deadline | Set by the criminal court process | Generally three years to sue (CPLR 214), with earlier deadlines for no-fault notice and some claims |
A guilty plea or conviction can be useful evidence, but it does not replace your civil claim, and an open criminal case does not pause your deadlines.
Step 1
Use no-fault benefits first
New York no-fault coverage pays "basic economic loss" up to $50,000 per person under Insurance Law 5102, without proving the other driver was at fault. That covers necessary medical and rehabilitation expenses and lost earnings for up to three years. Lost-earnings benefits are reduced by 20% and capped at $2,000 a month, and every benefit, including lost earnings, counts toward the same $50,000 limit.
Written notice must reach the no-fault insurer within 30 days of the accident, unless you give written proof of a clear and reasonable justification for the delay (11 NYCRR 65-1.1). Which insurer handles the claim depends on how you were involved; our guide to no-fault vs. bodily injury claims explains the difference.
Step 2
Meet the serious injury threshold for pain and suffering
Under Insurance Law 5104, pain and suffering (non-economic loss) is recoverable from another covered person only for a "serious injury." Economic loss above basic no-fault benefits, such as lost earnings beyond what no-fault pays or medical bills after the $50,000 is used up, can be claimed against the at-fault driver without a serious injury. Insurance Law 5102(d) now lists:
- Death, dismemberment or significant disfigurement
- A fracture or loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation of use of a body organ or member
- Significant limitation of use of a body function or system
What changed in 2026. Part EE of Chapter 58 of the Laws of 2026 removed the former category for a non-permanent injury that kept a person from usual activities for 90 of the first 180 days. According to DFS Insurance Circular Letter No. 3 (2026), the change applies to actions and proceedings commenced on or after May 26, 2026.
The same law added CPLR 1411(b). In a personal injury action subject to Insurance Law Article 51 and commenced on or after May 26, 2026, you cannot recover if your culpable conduct was greater than that of the defendants combined. Otherwise, CPLR 1411(a) reduces damages by your share of fault. Our comparative negligence guide explains how fault is divided.
Part EE also added Insurance Law 5104(d). It caps non-economic damages at $100,000 in a serious injury case brought by an at-fault injured person who is not barred by CPLR 1411 and who was (1) operating an uninsured vehicle they were responsible for insuring, unless the lapse in coverage was under 30 days; (2) operating while impaired and convicted of that offense; or (3) operating in the commission of a felony, or immediate flight from it, and convicted of that felony. The cap does not apply to injuries resulting in death. It turns on the injured claimant's own conduct and conviction, not on whether the other driver was drunk, so it affects your claim only if you fall within one of those categories.
Step 3
Identify everyone who may be responsible
Each possible defendant is a separate source of recovery, and each needs its own proof.
- The impaired driver. The claim still has to connect the driver's conduct to the collision and your injuries.
- The vehicle owner. Under VTL 388, an owner is liable for the negligence of anyone driving with the owner's express or implied permission, in the owner's business or otherwise. That can include a relative who lent the car or a business whose vehicle was being used.
- A bar, restaurant, store or other seller. New York's Dram Shop Act, General Obligations Law 11-101, allows a claim against anyone who caused or contributed to the driver's intoxication by unlawfully selling alcohol to the driver or unlawfully helping the driver get it. Alcoholic Beverage Control Law 65 bars sales to a visibly intoxicated person and to anyone actually or apparently under 21. The statute allows actual and exemplary damages.
- Anyone who supplied alcohol to a driver under 21. Under General Obligations Law 11-100, any person who knowingly caused the intoxication of someone under 21 by unlawfully furnishing alcohol, or helping them get it, while knowing or having reason to believe they were under 21, can be liable for actual damages. This section applies only to intoxicated persons under 21.
Step 4
Check your own uninsured and SUM coverage
Impaired drivers sometimes flee, carry low limits or have no insurance at all. Under Insurance Law 3420(f), New York auto policies must include uninsured motorist (UM) coverage, which applies to injuries caused by an uninsured vehicle, an unidentified hit-and-run vehicle, a stolen vehicle or a vehicle whose insurer denies coverage, among others. Required limits are $25,000 for one person's injury and $50,000 for one person's death, and pain and suffering is paid only for a serious injury.
Optional supplementary uninsured/underinsured motorist (SUM) coverage applies when the at-fault vehicle's bodily injury limits are lower than those on your own policy. Before SUM pays, the at-fault policies must be used up by payment of judgments or settlements.
On written request, the other driver's insurer must disclose its limits within 45 days, and your SUM claim time is tolled while it fails to do so. Find your declarations page early and have your policy's notice conditions checked.
Evidence to gather now
Evidence about impairment disappears quickly: footage is overwritten, receipts are discarded and witnesses move on.
- The police accident report number, and any arrest, summons or criminal case information
- Where the driver was drinking (bar, restaurant, store, party or event), and any receipts or tabs
- Names and contact details for witnesses and passengers
- Photos of the vehicles, plates, roadway, lighting and your injuries
- Nearby cameras: storefronts, homes, buses and dash cameras
- Medical records, no-fault forms and every insurer letter
- Your own policy declarations page showing uninsured and SUM limits
- A dated journal of symptoms, missed work and activities you cannot do
Deadlines that can apply
No-fault notice
Deadline Written notice within 30 days of the accident, unless you show a clear and reasonable justification
Source 11 NYCRR 65-1.1
Personal injury lawsuit
Deadline Generally three years
Source CPLR 214(5)
Wrongful death lawsuit
Deadline Generally two years after the death. A claim against a public entity also has its own notice rules.
Source EPTL 5-4.1
Claim against a city, county or other public entity
Deadline For a city, county, town, village or school district, generally a notice of claim within 90 days; for wrongful death, the 90 days generally run from appointment of the estate representative, not the injury date. The State and some public authorities follow different procedures. See how to sue a city or public agency.
Source GML 50-e
Dram shop claim
Deadline Section 11-101 sets no separate notice requirement; confirm the lawsuit deadline for each defendant
Source GOL 11-101
| Step | Deadline | Source |
|---|---|---|
| No-fault notice | Written notice within 30 days of the accident, unless you show a clear and reasonable justification | 11 NYCRR 65-1.1 |
| Personal injury lawsuit | Generally three years | CPLR 214(5) |
| Wrongful death lawsuit | Generally two years after the death. A claim against a public entity also has its own notice rules. | EPTL 5-4.1 |
| Claim against a city, county or other public entity | For a city, county, town, village or school district, generally a notice of claim within 90 days; for wrongful death, the 90 days generally run from appointment of the estate representative, not the injury date. The State and some public authorities follow different procedures. See how to sue a city or public agency. | GML 50-e |
| Dram shop claim | Section 11-101 sets no separate notice requirement; confirm the lawsuit deadline for each defendant | GOL 11-101 |
Deadlines depend on the facts, the defendant and tolling rules. Use this table as a starting point, not a calculation.
A published result involving a drunk driver
$315,000
$315,000 Settlement — High-Speed Crash with Clavicle Surgery
Our client was partially at fault for a high-speed accident after making an improper U-turn when she was struck by a drunk driver. The crash resulted in a clavicle fracture that required surgery.
Our client was partly at fault after an improper U-turn when a drunk driver struck her, and the crash caused a clavicle fracture that required surgery. Past results do not guarantee a similar outcome.
Questions victims ask
No. No-fault notice is due within 30 days of the accident, and the lawsuit deadline runs on its own schedule. The criminal case can produce useful records, but your claim should move forward at the same time.
Possibly. Under General Obligations Law 11-101, a seller that caused or contributed to the driver's intoxication by unlawfully selling alcohol to that person can be liable, for example by serving someone visibly intoxicated (Alcoholic Beverage Control Law 65). Proof of what the driver was served, and how the driver appeared, is central.
General Obligations Law 11-100 allows a claim for actual damages against any person who knowingly and unlawfully furnished alcohol to someone they knew, or had reason to believe, was under 21. Because it applies to any person, it can reach a private host, not only a licensed business.
It depends on the facts. General Obligations Law 11-101 allows a person injured because of someone's intoxication to recover actual and exemplary damages from a person who unlawfully sold or helped procure the alcohol. Whether punitive damages are available against the driver is assessed case by case.
Fault can be shared. In an auto injury action subject to Insurance Law Article 51 commenced on or after May 26, 2026, you cannot recover if your share of fault was greater than the defendants' combined share. Otherwise, your damages are reduced by your share.
Related guides
Sources
- Vehicle and Traffic Law 1192
- Vehicle and Traffic Law 388
- General Obligations Law 11-101
- General Obligations Law 11-100
- Alcoholic Beverage Control Law 65
- Insurance Law 5102
- Insurance Law 5104
- Insurance Law 3420
- CPLR 1411
- CPLR 214
- EPTL 5-4.1
- General Municipal Law 50-e
- 11 NYCRR 65-1.1
- DFS Insurance Circular Letter No. 3 (2026)
- NHTSA, Alcohol-Impaired Driving: 2023 Data (DOT HS 813 713, May 2025)
- N.Y. Penal Law 60.27 (restitution and reparation)
Hurt by an impaired driver?
Tell us what happened and what insurance information you have. We will review who may be responsible, which coverage applies and the deadlines in your case. The consultation is free. Call (516) 227-2662.