Proving Obviously Intoxicated Under the Dram Shop Act

obviously intoxicatedUnder the Texas Dram Shop Act, like in many other states, the plaintiff must prove that the alcohol seller in question served alcohol to a person who was “obviously intoxicated” when they were served alcohol. However, if you are a dui accident lawyer represent a victim of a drunk driving accident, proving the level of intoxication can be a difficult task. The drunk will never admit he was stumbling drunk because of the ongoing criminal prosecution. Few bars keep video of what’s going on inside the bar and, when sued, no bartender, waiter, or bar owner is going to admit that the person they sold alcohol to was obviously intoxicated. That would amount to admitting to a crime. So, this raises the issue of how to prove this element in situations where no one is talking.

How Do You Prove that a Drunk Driver Was Obviously Intoxicated When Served Alcohol?

The best way to establish that a drunk driver was obviously intoxicated when served alcohol is to hire a forensic toxicologist to calculate the person’s blood-alcohol level (BAC) at the time of service. A Forensic toxicologist is a type of expert witness who can calculate the BAC by determining the alcohol absorption rate and the time the BAC was measured, and then working backward to get to the BAC at the time the person was last served alcohol.

What is Blood Alcohol Content (BAC)?

The blood alcohol content is the measurement of how much alcohol is in a person’s blood. Under Texas law, a person may not have a BAC of .08 or higher while driving or they are presumed to be driving while intoxicated. However, be aware that just because your BAC is lower does not mean that you cannot be changed with driving while intoxicated. If the officer believes that you are impaired, he may arrest you and charge you anyway.

What is a Person’s Alcohol Absorption Rate?

Your alcohol absorption rate is the rate at which your body processes alcohol. Many people go by a makeshift rule of one drink per hour to keep from consuming too much. However, everyone is different, and this rule does not work for everyone. Your absorption rate is unique to you and it is determined by factors such as age, sex, weight, metabolism rate, medical conditions, other medications, and other possible factors. This is why an expert witness is typically needed with an understanding of how these factors affect a person’s BAC over time.

Talk To a Dram Shop Lawyer

If you or a loved one were injured by a drunk driver who had been drinking at a public place, it is worth your while to let an attorney with experience in dram shop cases evaluate your case. Auto insurance policies are often very low. Ignoring the bar can leave money on the table and fail to hold a responsible party accountable.  Simmons and Fletcher, P.C., Injury & Accident Lawyers offer a free consultation on Dram Shop accident cases. Moreover, when we take on a Dram Shop case, we work on a contingency fee basis so that you are not charged for any attorney fees or any of our expenses unless we make a recovery for you.




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Simmons and Fletcher, P.C., rooted in Christian values, exclusively handles personal injury cases, advocating for the rights of accident and negligence victims. Our Houston-based team, dedicated to compassion and excellence, handles cases across car accidents, motorcycle accidents, truck accidents, slip and falls, dog bites, and other types of cases with a commitment to personalized care. Upholding integrity and client-focused service, we strive for impactful legal outcomes. For a detailed understanding of our approach and team, visit our attorneys page.

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