Under 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 representing 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 question of how to prove this element when 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 charged 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 use a makeshift rule of one drink per hour to avoid overconsuming. However, everyone is different, and this rule does not work for everyone. Your absorption rate is unique to you and depends on factors such as age, sex, weight, metabolism rate, medical conditions, medications, and other possible factors. That is why an expert witness is typically needed to explain how these factors affect a person’s BAC over time.
How Do You Know When the Driver Was Last Served Alcohol?
There are many ways to determine the last time at which a bar served someone alcohol. Although it is rare, some bars have video surveillance inside or outside that can show when the person was served or when they left. Eyewitness accounts from drinking buddies who were present, or other bar patrons, can also indicate when the defendant was last served. Another way to determine the time of service is to review the paper trail. The intoxicated driver’s credit card records can be helpful in proving the amount and times of alcohol consumption. Additionally, bar receipts show purchase times and can often be matched to a customer’s credit card. Lastly, in today’s data-driven world, social media check-ins, posts, and applications often contain tracking data that may show when the driver left the bar.
Related Resources
- Using Social Media to Overcome the Safe Harbor Provision of the Texas Dram Shop Act. Learn how the attorneys at Simmons and Fletcher, P.C., used social media posts by the bar’s employees to defeat their Safe Harbor defense.
- What is Vicarious Liability? Understand how and why other parties are liable in situations such as dram shop liability.
- Texas Alcohol Liability Laws and Teenage Drinking and Driving. Learn how the Dram Shop Act treats Texas teens.
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 often have low limits. Ignoring the bar can leave money on the table and fail to hold a responsible party accountable. Simmons and Fletcher, P.C., 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 you are not charged attorney fees or our expenses unless we recover money for you.
