Is a debt incurred as a result of a DUI (or DWI depending on the argot used where you live) dischargeable in bankruptcy? There are three parts to the answer. Although my discussion makes use of California and Ninth Circuit law, its substance will undoubtedly apply, mutatis mutandis, to any jurisdiction in the United States.
I. A DUI Fine Is Not A Dischargeable Debt
If a debtor tied one on, got behind the wheel, and received a citation for drunk driving, the resultant fine is not dischargeable in bankruptcy. To establish this requires a two-step analysis.
A. Bankruptcy Other Than In A Completed Chapter 13 Plan
11 U.S.C. § 523(a) contains the exceptions to discharge in Chapter 7, 11, 12, and 11 U.S.C. § 1328(b) hardship discharge Chapter 13 bankruptcies. Included in that list is the following:
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— . . . to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit . . .
11 U.S.C. § 523(a)(7) (emphasis added).
B. A Completed Chapter 13 Plan Discharge
The list of debts that are nondischargeable in a completed Chapter 13 plan discharge ― found in 11 U.S.C. § 1328(a) ― is shorter than the list of exceptions to discharge found in 11 U.S.C. § 523(a). In particular, § 523(a)(7) is not included in the Chapter 13 list. However, 11 U.S.C. § 1328(a)(3) excludes from discharge (emphasis added): “any debt— . . . for restitution, or a criminal fine, included in a sentence on the debtor’s conviction of a crime . . .”
Is a DUI a crime? Yes. Here is the reasoning:
According to Cal. Veh. Code § 23152(a):
It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
And Cal. Veh. Code § 40000.15 provides:
A violation of any of the following provisions shall constitute a misdemeanor, and not an infraction: . . . Section 23152, relating to driving under the influence.
Finally, according to the legal dictionary at (emphasis added):
A misdemeanor [is] a lesser crime punishable by a fine and/or county jail time for up to one year. Misdemeanors are distinguished from felonies, which can be punished by a state prison term.
This definition agrees with those found in the plethora of legal dictionaries available on-line and in tangible book form.
In sum, driving under the influence is a violation of Cal. Veh. Code § 23152(a), which is a misdemeanor, and a misdemeanor is a crime. Therefore, a DUI fine is a criminal fine, and is thus nondischargeable, even in a completed Chapter 13 bankruptcy.
II. Damage To A Person Liability As A Result Of DUI Is Nondischargeable
11 U.S.C. § 523(a)(9) excludes from discharge any debt:
for death or personal injury 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.
And 11 U.S.C. § 1328(a)(2) includes by reference this exception to discharge in a completed Chapter 13 plan discharge.
Therefore, if a motorist hurts or kills someone as a result of driving under the influence, that debtor cannot discharge the injury or death debt.
III. Damage To Property Liability As A Result Of DUI: It Depends
A. Bankruptcy Other Than A Completed Chapter 13 Plan Discharge
11 U.S.C. § 523(a)(6) excludes from discharge any debt: “for willful and malicious injury by the debtor to another entity or to the property of another entity.”
How is drunk driving a “willful and malicious” act? The Ninth Circuit faced that question in the context of a Chapter 7 bankruptcy case:
[W]e hold that the voluntary acts of drinking and driving while intoxicated constitute conduct sufficiently intentional to support a finding of willfulness and malice, as contemplated by section 523(a)(6) and that this interpretation must be given retroactive application. See, e.g., Callejas v. McMahon, 750 F.2d at 731; Brown v. Marquette Savings and Loan Association, 686 F.2d at 615. Therefore, debts arising from liabilities which are incurred as a result of drunk driving, whether such conduct occurred before or after enactment of the 1984 amendment, are nondischargeable. Here, the finding that Adams had voluntarily been drinking and subsequently drove while intoxicated is unchallenged. Accordingly, we conclude that the district court’s decision on the issue of nondischargeability was correct.
In re Adams, 761 F. 2d 1422, 1427 (9th Cir. 1985).
Therefore, any liability as a result of damage to property caused while driving under the influence cannot be discharged.
B. A Completed Chapter 13 Plan Discharge
Things are a bit more complicated in a completed Chapter 13 plan discharge. 11 U.S.C. § 1328(a) does not incorporate 11 U.S.C. § 523(a)(6) by reference. Moreover, 11 U.S.C. § 1328(a)(4)’s exception to discharge:
for restitution, or damages, awarded in a civil action against the debtor as a result of willful or malicious injury by the debtor that caused personal injury to an individual or the death of an individual,
doesn’t include damage to property within its ambit.
However, 11 U.S.C. § 1328(a)(3) does except from discharge any debt “for restitution, or a criminal fine, included in a sentence on the debtor’s conviction of a crime,” and this exception is not restricted to personal injury restitution.
Therefore, if on the one hand the DUI sentence includes a restitution order that requires the debtor to pay for the damage to property, then the debt is nondischargeable. If on the other hand the sentence does not include a “damage to property” restitution order (stranger things have happened), then the debt is dischargeable if the debtor receives a discharge after completing the Chapter 13 plan.
With one possible Chapter 13 exception ― admittedly, an unlikely one ― DUI debts are not dischargeable in bankruptcy. Therefore, if you’ve had a bit too much Christmas cheer, call a cab.
If you’re a debtor and need bankruptcy protection, contact an extremely knowledgeable and highly skilled bankruptcy attorney to guide you through the process.
Image courtesy of Flickr (Licensed) by Lindsey G