Bankruptcy Code 523(a)(9) exception to dischargeBankruptcy Code Section 523(a)(9) excludes from your bankruptcy discharge debt that arises from operating a motor vehicle, boat or airplane while under the influence.  The language of the actual statute, however, is not entirely clear and Congress has changed this particular Code section several times, so you should make sure that your lawyer understands clearly this part of the law before you file.

First, let’s look at the actual language of the statute.  It reads as follows:

A discharge under [Chapter 7 or Chapter 13] does not discharge an individual debtor from 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;

As you can see, the language of this provision is not entirely clear.  When is a debt “for” death or personal injury?  Could a driver who was under the legal limit be considered intoxicated?  What does it mean to be “intoxicated” – is there a federal standard, or will the bankruptcy judge refer to state law?

Second, Section 523(a)(9) has been changed twice since 1984, when it was first added to the Bankruptcy Code.  The first version of the law required any drunk driving debt to arise from a judgment or consent decree entered in a court of record 1

In 1990, Congress rewrote the provision to except from dischargeability “for death or personal injury caused by the debtor’s operation of a motor vehicle” if the debtor was intoxicated by alcohol, drugs or another substance.

In 2005, Congress changed the law again to add “vessel or aircraft” so intoxicated pilots and boaters would clearly fall under the scope of the law.

As of the 1990 revision and thereafter, therefore, Section 523(a)(9) only refers to personal injury or death – it does not refer to property damage.  So, this subsection would not prevent a debtor from discharging a significant property damage debt such as damage to another’s vehicle or property 2.

The 1990 revision – and current reading of the law – changed “legal intoxication” to “intoxication” and removed the reference to state law.

What Does this Mean to an “At Fault” Driver with Drugs or Alcohol in His System who Caused an Accident?

As a practical matter, a driver, boater or pilot who is responsible for personal injury or death will most likely face a challenge if he attempts to discharge a plaintiff’s claim or award for money damages.  However, the debtor/defendant may have an argument for dischargeability or at least a basis for negotiation.

First, you should ask your criminal defense lawyer to consult with a bankruptcy lawyer prior to entering a plea.  If the facts and/or evidence is in dispute, the language of your plea and the state statute that you plea under can have far reaching implications should bankruptcy become an option down the road.  If, for example, the state’s evidence is weak and the state court judge accepts a reduction from driving under the influence to  reckless driving charge, Bankruptcy Code Section 523(a)(9) may not apply at all.

Experienced criminal defense lawyers know that the language of a state criminal law statute does not always square exactly with a defendant’s behavior.  A defense lawyer’s job is to advocate on his client’s behalf to force the state to prove its case.  Impaired drivers who cause injury and property damage should be punished and their behavior discouraged.  State law recognizes degrees of culpability, whereas the bankruptcy law keeps the definitions vague – this is where lawyers present arguments to judges 3.

Second, you should not rely on information about the Bankruptcy Code that you find on the Internet.  There are numerous web sites out there which contain erroneous or outdated information.  As discussed above Section 523(a)(9) has been changed twice already and it may be changed again.  Make sure that you lawyer(s) are relying on the most updated version of the Code.  A good place to start is the Cornell University published version of the Bankruptcy Code but I would verify the statutory language in two or three places before relying on that language for my strategy.

Finally, the interpretation of Section 523(a)(9) may differ depending on where you file.  Atlanta area residents will generally file their cases in the Bankruptcy Court for the Northern District of Georgia, which is in the 11th federal judicial circuit.  Because Congress had changed the statute, not every facet of Section (a)(9) has been interpreted by the 11th Circuit Court of Appeals.  When researching this statute, you and your lawyer should not assume that another federal circuit court will interpret this part of the Code the same way as the 11th Circuit.  Further, much of the existing case law in the 11th Circuit and elsewhere is outdated because the language of the statute has changed.

Your bankruptcy lawyer, working together with your criminal defense lawyer, can evaluate the facts of your case and can develop an argument for your bankruptcy case that increases the chances that more of your debt will be found dischargeable.  Just remember that this is an unsettled area of the law and a quick Google search will not be enough to educate you about how to proceed.

  1. The original version of Section 523(a)(9) required a court finding that a driver of a motor vehicle was intoxicated under applicable state law when creating liability and only referred to motor vehicles.  This presumably covered personal injury and property damage.  Debtors tried to avoid a finding of non-dischargeability by filing bankruptcy prior to the entry of a judgment, but bankruptcy courts throughout the country somewhat awkwardly ignored the judgment requirement provision.
  2. Creditors can object to the discharge of property damage by objecting under Section 523(a)(6) which excepts from discharge damages arising from willful and malicious injury.  This gives rise to the question of whether a driver who operates a motor vehicle, boat or plan while intoxicated is automatically acting willfully and maliciously.  This is an issues that continues to be litigated in bankruptcy courts throughout the country
  3. Many years ago, I represented a defendant in a DUI case in an Atlanta area court where my client was behind the wheel of an engine-less and transmission-less car chassis that was being towed by a friend driving a truck.   My client and his friend were pulled over because they did not have required lights on the towed vehicle – there was no accident or other damage caused.  My client, who was legally intoxicated, could turn the steering wheel but had no control over acceleration or braking.   The DUI statute required a driver to be in actual physical control of a vehicle and the judge in this case found that my client did have control to steer the towed vehicle and could have caused a wreck.  The judge recognized that my client’s culpability was less that if he had been actually driving and he did not incarcerate my client, although this was my client’s third lifetime DUI

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Jonathan Ginsberg represents honest, hardworking men and women in the Atlanta area who need bankruptcy protection. Call him at 770-393-4985 for a confidential discussion.

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