My wife died in a Wilmington drunk driving car accident. There is already a criminal DWI case pending against the truck driver who killed her. Can I sue for wrongful death too, or does the criminal case make that impossible?

We are very sorry to hear about your loss.

Yes, you can file a wrongful death lawsuit against the drunk driver. That lawsuit will take place under the rules of North Carolina civil law. The state’s case against the driver will follow criminal law. One type of legal action does not lock out the other.

You may have heard that there is something called double jeopardy that prevents someone from being tried twice for the same offense. That’s absolutely true, and it’s a guarantee embedded in the U.S. Constitution. However, it only applies to criminal cases within one jurisdiction. North Carolina cannot try this truck driver twice for the same incident of vehicular homicide while intoxicated.

The existence of a criminal case has no bearing on whether you can bring a civil lawsuit. In fact, it may enhance your prospect of winning a judgment. Your North Carolina fatal injury attorney may be able to get useful documentation from police and prosecutors while investigating the case. If the truck driver’s criminal case is resolved with a verdict or guilty plea before your lawsuit comes to trial, the driver’s insurance company may be more willing to settle outside of court.

You should bear in mind two other important differences between the state’s criminal case and your civil case:

  • The standard of evidence needed to win is different. The state has a tougher burden of proof in a criminal case. The prosecutor must show beyond a reasonable doubt that the truck driver met the requirement of the criminal statute for the charge. That may require showing a precise degree of intoxication, for instance. In your civil case, your attorney must show by a preponderance of the evidence—meaning “more likely than not”—that the truck driver was negligent, and that this negligence led to your wife’s death.
  • The ultimate goal of the court process is different. The state’s criminal case is directed toward the goals of punishment, deterrence, and social control. A winning case leads to prison or jail time for the truck driver. On the other hand, the goal of a North Carolina wrongful death lawsuit will be to compensate you for your losses in the only way possible—with monetary damages.

Everyone involved recognizes that money is not what you most want, but the legal system cannot bring your wife back to you. Monetary damages or a settlement affords you a cushion against the extra expenses and hardships you face because your spouse is lost. We know that can’t fill the hole in your life, but we all hope it can help the recovery process in some small way.

For more information about the biggest mistakes people make in auto injury cases that cost them thousands and the most effective ways to avoid these mistakes please call (877) 593-4233 to request a free copy of my book, The North Carolina Auto Injury Book, 20 Secrets to Maximize your Claim or to speak with an experienced professional about your case.



R. Clarke Speaks
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Trial Lawyer and Founder of Speaks Law Firm, P.C.