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Maryland Senate passes bill adding to liability of drunk drivers

The Maryland Senate voted overwhelmingly Friday to make it easier for survivors of those killed by drunk drivers to recover large sums from "super drunk" repeat offenders.

By a 43-1 vote, senators approved a measure allowing plaintiffs in such cases to sue for punitive damages if a person who has already been convicted of driving under the influence kills a person in a subsequent crash while extremely intoxicated.

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The bill now goes to the House of Delegates, where similar legislation died in committee last year.

A victim's family can now collect only compensatory damages. The bill's sponsor, Sen. Jamie Raskin, said his bill would correct a wrong.

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"If you kill someone drunk driving in your car, you may be liable only for the funeral and damage to the car," said Raskin, a Montgomery County Democrat. "Given the enormity of the loss in a drunk-driving accident, that's a pretty pathetic response by our civil law system."

The measure apparently would have applied to the case of former Episcopal Bishop Heather Cook, who was intoxicated when she struck and killed bicyclist Thomas Palermo in Baltimore in December 2014.

Raskin said the bill would "dramatically" raise the stakes" for extremely-intoxicated drivers. He said his understanding is that most auto insurance policies don't cover punitive damages, exposing the offender to an increased risk of having to pay out of pocket.

The Senate legislation defines "super drunk" as a blood-alcohol level of 0.15 percent — about twice the legal limit of .08 for driving under the influence. Maryland also sets a limit of 0.07 for the lesser charge of driving while impaired.

Cook registered 0.22 on a breath test after running over Palermo on Roland Avenue. She had previously pleaded guilty to a drunken driving charge in Caroline County in 2010 and received probation before judgment. After being convicted in the second case, she received a seven-year sentence.

Sen. Robert A. Zirkin, who heads the Senate Judicial Proceedings Committee, said the measure anticipates the problem of drivers who refuse to take a breath test.

Zirkin, a Baltimore County Democrat, said that drivers who refused to be tested would be presumed to be at 0.15 for the purposes of civil liability. That, he said, would be a potent deterrent to refusing the test.

"It certainly dovetails really well with what we're trying to do in the criminal law," he said.

But as in many drunk-driving issues, a bipartisan Senate consensus may carry little weight in the House.

Del. Kathleen Dumais, vice chairman of the House Judiciary Committee, said a similar bill was defeated in that panel last year when four Democrats joined eight Republicans to vote against it.

Dumais, a Montgomery County Democrat, said she expects to oppose it again this year. She said it isn't appropriate to single out one particular class of offender for punitive damages.

"It's not that I want to be soft on drunk drivers," she said. "This is not good policy."

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The legislation would reverse Court of Appeals decisions that held that if the harm caused by drunk driving was not intentional, the claim would not meet the "actual malice" standard necessary to award punitive damages to victims or their survivors.

Dumais said the proper deterrent for drunk driving is a jail sentence and questioned the value of the added civil liability.

Citing a judge's opinion in one of the Maryland high court's cases, she said: "no drunk driver is going to think, gee, I shouldn't drive drunk because I might get compensatory and punitive."

Matthew A. Clark, a spokesman for Gov. Larry Hogan, said the governor would review the legislation if it reaches his desk.

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