An accident, a fine, criminal proceedings – and then, several months later, a demand from the insurer for the return of tens of thousands of zlotys. Recourse for drink driving is an increasingly common tool used by insurers. It is worth understanding the legal basis on which they apply it and when an effective defence is available.
Contents
- What drink driving recourse involves
- When the insurer can demand repayment
- How the insurer proves drink driving
- Effective defence strategies
- Practical advice
- FAQ
What Drink Driving Recourse Involves
In normal circumstances, a third-party liability policy protects the driver from personal financial liability to those injured – the insurer pays out and the driver’s involvement ends there. Recourse is an exception to this rule.
Article 43 of the Act of 22 May 2003 on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau gives the insurer the right to seek repayment of compensation it has paid out from a driver who was operating the vehicle in a state of use of alcohol or in a state of intoxication. This means the insurer pays the injured party in full – and then turns to the driver to recover that amount.
The sums involved can be very large. Where a seriously injured claimant received compensation and pain and suffering damages running to several hundred thousand zlotys, the insurer may demand exactly that amount from the driver.
When the Insurer Can Demand Repayment
The right of recourse arises from an alcohol concentration of 0.2 per mille in the blood (or 0.10 mg/l in exhaled breath) – the lower threshold of the state of use of alcohol, which constitutes a misdemeanour under Article 87 of the Code of Misdemeanours.
Above 0.5 per mille (or 0.25 mg/l in exhaled breath), the driver is in a state of intoxication – a criminal offence under Article 178a of the Criminal Code – and the basis for recourse is even clearer.
Importantly, the insurer may demand repayment regardless of whether the alcohol actually influenced the manner of driving or the occurrence of the damage. The mere presence of alcohol in the driver’s system at the time of the incident is sufficient for the insurer to initiate recourse proceedings.
How the Insurer Proves Drink Driving
In recourse proceedings, the insurer draws on several categories of evidence.
Breathalyser test records. The result of the test carried out by the police immediately after the incident is the primary piece of evidence. The insurer submits the test record and relies on the measurement result.
A final criminal conviction. Where the driver has been finally convicted of the criminal offence under Article 178a of the Criminal Code or penalised for the misdemeanour under Article 87, the insurer relies on that judgment as evidence in the civil proceedings. A civil court is bound by the findings of a final criminal judgment as to the fact of the offence being committed.
Blood test results. Where alcohol concentrations are high or the breathalyser result is disputed, the police may arrange for a blood sample to be taken for laboratory analysis. Such results carry particular evidential weight.
Witness statements. Witnesses who saw the driver consuming alcohol before the journey, or who observed signs indicating a state following alcohol consumption, may be called by the insurer.
Effective Defence Strategies
Challenging the Causal Link
This is one of the most effective arguments. Recourse relates to compensation paid for the damage – and the insurer should therefore demonstrate that the alcohol had a connection with its occurrence. If the accident would have been unavoidable even for a completely sober driver – for example because the other road user forced right of way or made a sudden unpredictable manoeuvre – the argument of no causal link can materially reduce or eliminate the recourse claim.
Similarly, if road or weather conditions were the decisive factor rather than the driver’s psychomotor capacity, this is worth establishing in the proceedings, ideally through an accident reconstruction expert’s opinion.
Challenging the Correctness of the Breathalyser Test
The breathalyser result can be contested where procedural irregularities occurred. The most common include: an expired calibration certificate for the measuring device, failure to observe the required 15-minute interval between measurements, and improper operation of the device. In such cases, the measurement result loses its reliability as evidence.
It is also worth checking whether the driver consumed any substances containing alcohol before the test – mouthwash or certain medications – which could have inflated the reading.
Alcohol Consumed After the Accident
One of the harder but possible lines of defence concerns a situation where the driver consumed alcohol only after the accident – for example out of shock, while waiting for the police. This defence requires convincing evidence: witness statements confirming sobriety before the incident, receipts or invoices for alcohol purchased after the event, and in some cases the opinion of a toxicology expert who can assess, on the basis of the concentration and elimination rate, when the alcohol could have been consumed.
Contributory Negligence of the Injured Party
Where the injured party contributed to the occurrence or aggravation of the damage – for example by breaching road traffic rules themselves – the recourse amount may be proportionally reduced. Article 362 of the Civil Code provides that the obligation to compensate for damage is reduced in proportion to the degree of contributory fault.
The Limitation Defence
The insurer’s recourse claim becomes time-barred three years from the date on which compensation was paid to the injured party. If the insurer waited too long before making its demand, a limitation defence can effectively block the claim.
Practical Advice
Do not ignore the demand. Failing to respond to a recourse demand typically results in a payment order being issued in summary proceedings. An objection to the order can be lodged, but if it is not filed within the deadline, the order becomes final and enforceable by a bailiff.
Be careful about what you say. Admissions regarding alcohol consumption, the manner of driving or responsibility for the accident made in conversations with the insurer or its lawyers can be used as evidence in court proceedings.
Gather the documentation. Incident records, test results, documents from the criminal proceedings, any relevant medical records – these are the starting point for a lawyer’s analysis of the case.
Consider a settlement. Insurers are often willing to negotiate – it may be possible to arrange payment in instalments, reduce the amount claimed or write off interest. An out-of-court settlement is sometimes advantageous for both sides where the outcome of litigation is uncertain.
Consult a lawyer as early as possible. The sooner the merits of the recourse claim are assessed and a strategy is in place, the more options are available – both in negotiations and in any court proceedings.
FAQ
Does recourse apply at any alcohol concentration? Yes. The right of recourse arises from 0.2 per mille – the lower threshold of the state of use of alcohol. There is no minimum concentration below which recourse is excluded.
How long does the insurer have to bring a recourse claim? The recourse claim becomes time-barred three years from the date the compensation was paid to the injured party. After that period, a limitation defence can be raised effectively.
Does not knowing you were over the limit release you from recourse liability? No. A driver’s subjective belief that they were sober does not exclude recourse liability. The law does not make recourse dependent on the driver’s own assessment of their sobriety.
Can the level of recourse be negotiated? Yes. Insurers regularly conclude settlements – both as to the amount and the payment terms. Negotiations backed by specific legal arguments are frequently more effective than an outright refusal to engage.
What if I only drank after the accident? This is a viable line of defence but requires solid documentation. Witness statements, evidence of alcohol purchased after the incident and a toxicology expert’s opinion are the minimum needed to present this argument effectively.
Contact Us
A recourse demand for drink driving is a serious financial matter that requires prompt analysis and a considered response. Every case has its own specific features and requires an individual approach.
It pays to be properly prepared: both in knowing what you can claim and in having a clear strategy.
We handle cases for drivers in Poznań and across the Wielkopolska region, with in-person and online consultations available for clients elsewhere in Poland.
Adwokat Marta Krzyżanowicz and Adwokat Michalina Koligot Law Firm “Adwokat dla Kierowców w Poznaniu”
ul. Adama Mickiewicza 18/3, 60-834 Poznań
tel. +48 795 001 536 · +48 531 335 713
kontakt@adwokatdlakierowcy.pl · www.adwokatdlakierowcy.pl
This text is for general information purposes only and does not constitute legal advice. Every case requires individual analysis.
