Can I sue someone for wrongful death while they are in prison for DUI after the accident?

Every state allows a wrongful death lawsuit to be filed regardless of the circumstances of death. In simplest terms, the action or actions that led to a death could have been purely accidental (lacking a specific intent to cause harm to the victim) or deliberate (intended to cause a physical injury but not necessarily the victim’s death).

Wrongful Death as a Civil Matter

A wrongful death lawsuit is a civil matter rather than a criminal prosecution, requiring a civil attorney rather than a DUI lawyer Peoria IL relies on. The fact that someone has been found guilty of DUI in an accident that resulted in a fatality has no bearing in any subsequent wrongful death lawsuit. In fact, a DUI conviction in an accidental death will usually settle the issue of liability from the moment a lawsuit is filed, with the only issues to be decided being the type and amount of damages that are to be awarded!

Statute of Limitations

If a wrongful death lawsuit is brought against a defendant who is serving a jail sentence after being convicted for a crime that is related to the victim’s death, the legal proceedings involved in that lawsuit must still follow the requirements set forth in the civil code of the state where the lawsuit is filed. Among the most important of such requirements is the statute of limitations for filing a wrongful death lawsuit.

  • A statute of limitations is a provision in each state’s civil (non-criminal) law that sets a “time limit” for filing lawsuits of different types.
  • In most states a lawsuit claiming personal injury must be filed within two or three years of the date of injury, although the statutes can range from one year to six years, depending on the laws of the state where the death occurred.
  • A statute of limitations thus begins to “run” on the date of injury and “expires” on the second or third (or some other) anniversary of the injury. In general, the statutes of limitations for both personal injury and wrongful death lawsuits are the same.

Suspension of Statute of Limitations

In some, but not all, states the statutes of limitations that would normally apply to a lawsuit may be suspended, or “tolled,” if the defendant is unable to appear in court and that inability to appear is for a valid reason that can be found in the state’s civil code. In states that allow “tolling” of lawsuits, the incarceration of a defendant is always sufficient reason to suspend the statutes of limitations that may apply to a particular type of lawsuit.

Legal Right to File a Wrongful Death Suit

Other factors that may influence a lawsuit against an incarcerated defendant are the questions of who has the legal right to file a wrongful death lawsuit and whether such a lawsuit is being filed on behalf of the survivors or on behalf of the estate of the victim. While such questions may seem to be, at best, “legal hair splitting,” such issues must be addressed before a wrongful death lawsuit is filed.

In summary, you can file a wrongful death lawsuit against someone who is serving a prison sentence after being convicted for DUI. Since there is the possibility that your state’s statutes of limitations will continue to “run” while that person is serving his or her sentence, it is essential that you consult a wrongful death attorney who is familiar with the laws of the state where the lawsuit is to be filed.


SWThanks to our friends and contributors from Smith & Weer, P.C. for their insight into DUI charges.

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