When you are involved in an accident with a drunk driver and you learn that he was leaving a bar, you may wonder: does the bar have responsibility? After all, they may have over-served the driver. The question is: Can you sue the bar in Arizona? What are our state’s over-serving alcohol penalties?
Under Arizona law A.R.S. § 28-1381, a blood alcohol concentration of 0.08 confers the status of DUI on a driver.
It is unlawful for a person to drive or be in actual physical control of a vehicle while under the influence, if the driver is slightly impaired, or if the person has an alcohol concentration of 0.08 or more within two hours of driving or in actual physical control of the vehicle.
Once BAC exceeds 0.15, Arizona law A.R.S. § 28-1382 comes into play. A BAC of 0.15 or more but less than 0.20 is the first level of “extreme influence of intoxicating liquor.” BAC of 0.20 or more is the second, even more extreme level.
The higher the level of alcohol influence, the higher the minimum penalty for conviction. If a person is convicted of a § 1381 (alcohol impairment, BAC between 0.08 and 0.15) crime, they are sentenced to 10 days in prison, fined a minimum of $1,250, and may be required to perform community service.
Someone convicted under the first clause of § 1382 is sentenced to no less than 30 days in jail. He or she may be fined a minimum of $2,500, and other punishments that the court may choose to levy.
Someone convicted under the second clause of § 1382 (BAC higher than 0.20) is sentenced to no less than 45 days in jail, fined a minimum of $2,750, and is still eligible for the penalties levied for a conviction under a lower BAC.
The increasing penalties for higher BAC levels apply to the drunk driver. Now, if his 0.17 BAC came from the driver downing half a bottle of whiskey in the privacy of his own home, obviously full responsibility rests with him.
But what if the driver was driving home from a bar? And what if the bartender had served him drink after drink—even once it became apparent that his blood alcohol level had risen to the level of impairment?
Here enters Arizona’s Dram Shop Laws, which prohibit a bar from serving alcohol to a clearly intoxicated individual. The three things that should prove in order to convict are:
The intent of these laws appears to put bars and taverns on notice that they are liable for over-serving patrons. The actions of employees may impugn upon the establishment itself.
Does the driver’s BAC make a difference in impugning the bar? After all, you’d assume a higher BAC means a higher level of irresponsibility.
Let’s check if that’s true in Arizona.
In Swartz, a 23-year-old male was rear-ended by an individual served at Funbar. The driver had consumed six drinks in 40 minutes. The driver had a BAC of 0.16, twice the legal limit in Arizona. The parents, plaintiffs in this case, argued that Funbar did not act properly when serving the driver, did not have adequate checks on beverage service, and should have offered the driver an alternate ride home. Funbar claimed it acted reasonably, that the staff got proper training to recognize alcohol overconsumption, and they were not responsible for the decedent’s death.
The case got the settlement out of court for Funbar’s insurance policy limit of $1 million.
In Taylor, Neuling struck a 22-year-old male pedestrian, a bartender at the Point Hilton Squaw Peak Resort. Neuling, while off duty, had consumed more than 11 ounces of alcohol at the resort over the course of four hours and 45 minutes. Neuling’s BAC at the time of the incident was between 0.14 and 0.16. Reports varied about her speed, anywhere from 5 MPH over the speed limit to 20 MPH over the posted speed limit. The resort denied any responsibility and blamed both Neuling and the decedent. Neuling claimed the decedent should not have walked into the street with oncoming traffic, no traffic signal, and no crosswalk.
This case made it to the courtroom. The jury awarded decedent’s parents $30,000 and found decedent 40% responsible for the incident. Neuling was 40% responsible, and the resort 20% responsible for the incident.
In Swartz, while Funbar originally claimed that they had acted reasonably and responsibly, they ended up settling out of court for Funbar’s insurance policy limit of $1 million.
In Taylor, the resort denied all responsibility, blamed the driver and the decedent. Even when the case went to court, the resort was only 20% responsible.
The driver’s BAC (in both cases around 0.16 at the time of the incidents) seems to play little, if any, role in implicating the establishment where he bought the liquor. Significantly more important were the bar’s policies and actions on the day of the incident. The defining difference between the two cases seems to be the timespan in which they served the drinks and the obvious effects a bartender could have observed or should have anticipated.
In Swartz, the driver got six beverages over a period of 40 minutes, or approximately one drink every seven minutes. The driver had also been drinking for a number of hours before arriving at Funbar. He appeared inebriated before leaving.
In Taylor, the driver, Neuling, had consumed approximately 11.3 ounces of alcohol over the course of 4 hours and 45 minutes. This means she consumed approximately one and a half drinks per hour while at the bar.
The bar in Taylor, though it could have done more to stop Neuling, served her far fewer drinks per hour than the bar in Swartz. The resort clearly felt that they were not responsible, as they chose to go to court instead of offer a settlement, despite their having an insurance policy like Funbar’s. The jury, too, although the fault percentages they assigned indicated some responsibility on the part of the resort, clearly felt the resort’s negligence did not rise to the level required for the exemplary damages award.
In contrast, Funbar clearly over-served an obviously intoxicated individual. It would likely be liable for the decedent’s death. Swartz never went to trial, and it’s very possible that the high settlement was a reflection of the defense’s fear of a jury awarding punitive damages.
When it comes to impugning an establishment, these cases show the little role, if any, played by the driver’s BAC at the time of the incident.
It is telling that the settlement amount in one case was higher than the actual recovery. If you’re involved in a case involving DUI in Arizona as a result of over-serving alcohol penalties, research into the settlement versus recovery amounts should be done. Take into account establishment insurance policies to determine if it is better for the plaintiff to take a settlement offer rather than proceed to trial.
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