Seeing the Signs: How We Spot Possible Dram Shop Accidents

Michael GrossmanJanuary 31, 2017 6 minutes

Drunk driving appears to be a blind spot in our national consciousness. I cannot think of a single person, no matter how contrarian, who could compellingly argue that this practice has positive benefits. It's dangerous, it's illegal, and it flies in the face of common sense. I doubt I need to be worried about some blistering counterpoint appearing in our comments section, but I can't help but state the obvious here when the firm has worked with hundreds of dram shop cases right here in Texas.

Not every drunk driving crash involves the most obvious signs that alcohol intake has occurred--say, the overwhelming reek of ethanol, or an identifying mark from a nearby bar--but certain factors of a crash can lead to an educated guess. If one or more of these factors are reportedly part of a collision, it behooves investigators to consider intoxication as a contributor to the crash.

Common Factors in a Dram Shop Accident

Whether or not a driver's intoxication is confirmed at the scene, authorities are likely to apply toxicological screening to motorists if alcohol's influence is suspected. It takes time to get those results back, though, and news sources are unlikely to sit on a story until all possible data is available, so there are times when stories are run without the specific charges known. It will later be revealed that the offender was charged with a DUI, or in worse cases, intoxication manslaughter.

Before authorities officially confirm intoxication as a factor, it's sometimes still possible to employ experience and common sense to deduce that someone has been over-served and then put behind the wheel. Certain common elements are often noticeable in reports:

  • Inordinate speed. While this is of course not limited to inebriated drivers, often they are seen in combination with some of these other elements when intoxication is a factor. Driving considerably over (or under) the speed limit is one major sign of compromised judgment.
  • Disregard of traffic signage. Beyond speed fluctuations is a drunk driver's tendency to disregard traffic signs, such as stop signs or even lights at intersections. Many are the cases where intoxicated drivers have sped directly through a red light while under the influence. Situational awareness is heavily compromised by overconsumption of alcohol, meaning that reaction time is slowed considerably. Drunk drivers often breeze right by traffic-control signage without even noticing it, even on routes they've taken many times before.
  • Driving the wrong direction on the road. This behavior is often seen in cases involving alcohol, be it "crossover" incidents on two-lane streets or even more drastic cases where drunk motorists have entered major highways via their exit ramps, speeding down the multi-lane asphalt toward oncoming vehicles.
  • Driving very late at night. Obviously this is not a particular indicator of intoxication by itself; the nation's roads are essentially never completely empty. There's plenty of non-inebriated reasons to be out and about in the wee hours. However, when we couple the hour--particularly if it's around 2:00 a.m. which is closing time for Texas bars--with other mentioned factors, they can often seem correlative, as if perhaps a person left a bar when it shut down and climbed, intoxicated, behind the wheel to head home. The Texas Department of Transportation (TxDOT) seems to reinforce this idea with their published DUI crash statistics from 2015, broken down by the hour of the day when they occur:
    TxDOT 2015 DUI crash stats by hour

    As you can see, 2:00-2:59 a.m. appears to be something of a "witching hour" for DUI wrecks. The bars close their doors, and they are not too choosy about who gets to drive home after a night of steady drinking. While the hours between 11:00 p.m. and 3:00 a.m. have observably high numbers of drunk-driving crashes, the hour after last call is clearly at the forefront. Hence, reported wrecks that occur somewhere around this window statistically have additional likelihood of involving alcohol.

  • Fleeing the scene of an accident. Should some of these other factors come to their unfortunate-but-all-too-likely fruition, a collision may occur. A driver in possession of his or her faculties does not attempt to leave the scene; in fact, the Texas Transportation Code (TTC) § 550.021(c) indicates that the very act of doing so is illegal:

    (c) A person commits an offense if the person does not stop or does not comply with the requirements of this section. An offense under this section:
        (1) involving an accident resulting in:
            (A) death of a person is a felony of the second degree; or
            (B) serious bodily injury, as defined by Section 1.07, Penal Code, to a person is a felony of the third degree; and
        (2) involving an accident resulting in injury to which Subdivision (1) does not apply is punishable by:
            (A) imprisonment in the Texas Department of Criminal Justice for not more than five years or confinement in the county jail for not more than one year;
            (B) a fine not to exceed $5,000; or
            (C) both the fine and the imprisonment or confinement.

    Setting aside (though not ignoring) legal compulsion for a moment, there's also the simple fact that a sober person's moral imperative would most likely be to assist anyone injured by his or her actions. In an inebriated state, the same motorist may be more susceptible to the impulse to cut and run, attempting to avoid the crash's consequences.

Crashes Like These Merit Further Inquiry.

If a wreck happens and it exhibits any or all of these telltale signs--if a driver goes the wrong way up a public road, or speeds and weaves erratically, or leaves the scene of a wreck--one may not conclusively state he or she was drunk, but certainly could theorize it based on the available evidence. If excess alcohol consumption is confirmed, then it would be irresponsible not to ask where the alcohol came from. After all, if someone funneled too much of an intoxicant into a driver, and that driver then hurt someone, dram shop law dictates that the alcohol's provider played a part in the damages caused by the drunk person.

Sometimes the investigation reveals that the drunk driver was consuming alcohol at home or in a private residence. Other times--many times--it is determined that the driver was out for drinks at a bar or restaurant. One such instance of that would be a recent case out of Houston, which occurred on January 13 around 11 p.m. At the time, a young driver fled the scene of a minor accident, ran a red light, and crashed into two other vehicles. The passenger in the first car hit at that point, 62-year-old Martha Barrios Rojas, was critically injured. She was taken to the hospital, where she passed away on January 20.

The 19-year-old driver who caused the crashes was found by responders to be intoxicated. He was charged with intoxication manslaughter, intoxication assault and two counts of failure to stop and render aid.

In cases like this, it is important to determine where the offender's alcohol came from. Either he fraudulently drank at a bar that didn't exercise appropriate care in examining his ID, or at the very least someone provided alcohol to an individual who, while not a minor, is not of legal age to drink. Our experience has led us to know that the law does not always succeed at preventing underage people from entering bars and being served (and overserved) alcohol.

The young offender exhibited at least three of the telltale signs of intoxication before crashing into the vehicle carrying Martha Barrios Rojas. According to the police report, he 1) fled from an initial collision, 2) ran a traffic light, and 3) was operating the vehicle at an hour that correlates to elevated DUI crash numbers. That last element might be less germane were it not for the other two, but combining them all, it would appear to an observer that the collision involved alcohol even before it was confirmed by authorities.

Accountability for All Involved

The tenets of Texas dram shop law say that both an intoxicated party and the place that poured his last drink may be liable for any damages caused during his inebriation. By willfully enabling a patron to become so drunk that his decision-making is compromised, a bar is considered to be complicit in any damaging activity the patron then engages in. That is applicable to anything from drunken barroom brawls to drunk driving accidents.

The Texas legislature passed the Dram Shop Act in 1987. Under this statute, a provider of alcoholic beverages can be liable for damages in a civil suit if it is proved that:

  1. At the time the provider sold or served the alcohol it was apparent to the provider that the recipient was obviously intoxicated to the extent he presented a clear danger to himself and others, and
  2. The intoxication of that individual proximately (directly) caused the damages suffered.

The noted behavior of the drunk driver suggests that intoxication certainly played a role in his behavior behind the wheel. His blood-alcohol content was not published, but the fact pattern indicates he was drunk enough that one could surmise he was over-served. Dram shop law suggests that when such incidents occurred, the serving establishment may be considered negligent in a legal sense. A viable cause of action against that establishment may then be present.

If people are going to continue stubbornly insisting on defying their own instinct to survive, they and whoever helps them need to be held responsible for the consequences.