You the jury

Nation's Restaurant News, June 26, 1989

YOU, THE JURY

In the spring of 1986, Mark, 28 years old, went to Harry's Pub. He arrived at 7:30 p.m. and stayed until around 10:00 p.m. He reports that he drank three shots of whiskey and three 12-ounce beers.

He left Harry's and went to the Wind and Sea Restaurant. There he reports that he drank another two shots of whiskey and two 10-ounce beers. He arrived at 10:30 p.m. and left at about 11:30 p.m.

About an hour after leaving the second bar, he was stopped and arrested for drunk driving. His Blood Alcohol Content reading at 1:30 a.m. was 0.227 percent, more than twice the legal limit for driving.

No accident and no injuries were involved. However, the state Alcholic Beverage Control Commission has charged the Wind and Sea Restaurant with serving alcohol to an obviously intoxicated person. John, owner of the restaurant, must appear before the commission for a formal hearing.

This is a unique administrative hearing because there was no law enforcement agent present in the restaurant when Mark was served. The only witnesses are Mark and his friend, who was also drinking. His friend testifies that Mark appeared to be intoxicated when served.

The prosecutor's perspective is that Mark's BAC level was so high when it was taken two hours after his last drink, that it would have been even higher had it been measured when he was in the Wind and Sea.

Toxicologists, who are experts in alcohol and its effect on behavior, would testify 95 percent of people with a BAC of 0.2 percent or greater would show obvious signs of intoxication, and therefore the server in the Wind and Sea should have known Mark was intoxicated.

In addition, the prosecutor will argue that in 1986, server training programs were available to the Wind and Sea Restaurant, but John did not enroll his staff. Had they been trained, they would have been better able to recognize Mark's intoxication and refuse service.

From the defense perspective, what Mark reports he drank does not equate with the high level of BAC. He reports consuming 10 drinks, and his BAC was taken six hours after he had his first drink. That would put his BAC at a level of about 0.1 percent. Also, when he entered the Wind and Sea, he had only three drinks in his system, which would put him below the 0.1-percent BAC level, and it is probable he would not show obvious signs of intoxication at this level.

Secondly, he was an experienced drinker, and he was able to drink more without showing signs of intoxication. His friend was drinking with him, and despite the fact that he later testified that Mark was intoxicated, he made no effort to prevent Mark from driving.

Finally, in a civil proceeding in Washington state, the court did not allow the testimony of a toxicologist that used "retrograde extrapolation" to determine what a person's behavior would have been hours before taking a breath test. Instead, the court required witness testimony as the only valid evidence to prove a server knew or should have known that a person was intoxicated.

The implications of this case are quite significant. If the ABCC rules against the restaurant, it will establish a precedent for allowing the testimony of convicted drunk drivers as evidence against the bar or restaurant that served them. That process will also increase the number of civil lawsuits brought against serving establishments.

A number of state law enforcement agencies are now asking persons arrested for drinking and driving where they had their last drink. That permits more focused enforcement efforts against servers of alcohol, and an establishment that is repeatedly named can be vulnerable to criminal, administrative, and civil liability.

You be the jury. Was the Wind and Sea Restaurant negligent? Should John have enrolled his staff in a server training program? Should BAC be used as evidence of intoxication for charging a server?

The actual jury verdict will be mentioned in the next issue of Bar Management. For an answer in advance, call the RBS Council at 1 (800) 443-7277.