Drunk Driving and Bankruptcy
So you were arrested for drunk driving in Southern California, convicted, and now owe LOTS OF MONEY. Is this debt dischargeable in a bankruptcy proceeding? Sometimes, it is, but most the time it is not. Following are the most common laws that govern
Drunk Driving debts in the Bankruptcy Context:
11 USC 523: A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt:
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.
In order for a creditor to successfully have its debt declared non-dischargeable under this provision, the creditor must first file a separate lawsuit, called an Adversary Proceeding, in the underlying Bankruptcy Case. Timing is crucial! If it is filed more than 60 days past the first meeting of creditors and misses the “claims bar date,” then this non-dischargeability provision will not apply. Indeed, if the Adversary Proceeding is missed by as little as one day, then that debt is discharged.
This type of non-dischargeability will primarily apply to property damage claims. Assuming a timely filed Adversary Proceeding, the creditor must then obtain a bankruptcy court order. The Court Order is not that the debtor was drunk, but rather, that the debtor acted willfully and maliciously. Sometimes this can prove difficult if the intoxicity of the debtor negates the intent element of willful and malicious.
Accordingly, if a rental vehicle is wrecked, utility pole taken out, another car damaged without any personal injuries, or some other property damage claim is listed in a bankruptcy case, exclusive of any personal injuries, then those debts will be wiped out unless the creditor timely brings an action in the bankruptcy court and prevails.
(9) for death or caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance;
Unlike a(6) above, this provision only applies to and not property damage claims. Obtaining non-dischargeability under this provision becomes very easy if the creditor/victim already obtained a criminal ruling that there was an unlawful intoxication that caused the injury or death.
Also, unlike a(6), this provision is self executing and a creditor/victim need not file any separate action in the Bankruptcy Court to have this debt deemed non-dischargeable. It is in essence “automatic.”
Nevertheless, a prudent creditor/victim might still need to prove the elements for non-dischargeability in a separate proceeding if there are any doubts whether all the elements of this provision were ever met. Any assumptions could be disastrous!
Indeed, it could be possible for a drunk driver debtor to later successfully challenge whether there was in fact an unlawful intoxication at a later date in a different proceeding. If the challenge is successful, the debtor may even be able to assert a claim for a violation of the discharge injunction against the creditor/victim and recover damages!
(13) for any payment of an order of restitution issued under title 18, United States Code;
Title 18 restitution covers “(i) a crime of violence, as defined in section 16; and (ii) an offense against property under this title, or under section 416(a) of the Controlled Substances Act (21 U.S.C. 856 (a)).”
Accordingly, many courts have ruled that a DWI is a crime of violence under 18 USC 16. So if restitution is entered under this provision, then it will be automatically deemed non-dischargeable. Moreover, this provision applies to both property damage and. The good news is that most drunk driving charges deal with state law and usually do not also include this offense.
The forgoing shows why it is crucial and critical to get an experienced attorney retained as soon as possible if you have been charged with a DUI. Not only are criminal issues at stake, but also debt issues that should be planned for in the future.
Since Doan Law Firm, concentrates in both Bankruptcy and Criminal Law, we can take the appropriate steps to make sure that if a bankruptcy does need to be filed in the future, that any DUI debts associated with that will be eliminated as well.
Contact us now for a free consultation to further analyze the particulars of your case and explore your options.
The San Diego Bankruptcy Attorneys of Doan Law Firm, California’s Largest Family of Attorneys, Specializing in Bankruptcy, and Non-Bankruptcy Alternatives.
Doan Law will answer all your Chapter 7 and Chapter 13 Bankruptcy questions. Call us now to meet with our expert Bankruptcy attorneys, at any of our San Diego Bankruptcy offices, call (760) 450-3333.
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