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How “direct evidence” of obvious intoxication works in a Texas dram shop case.

If you have been injured by someone under the influence of alcohol, you may be able to sue the bar or restaurant who over-served them. Such a lawsuit is brought under the Texas Dram Shop Act, which is a law contained in the Texas Alcoholic Beverage Code that allows those injured by alcohol to sue the provider of the alcohol.

However, the Texas Dram Shop Act does not state that bars are liable for intoxication-related injuries simply because they served alcohol. In order for a bar to bear liability under the Act, it must be shown that the bar served a patron additional alcohol once that patron was already deemed to be dangerously drunk. This is known as the “obvious intoxication” standard.

In other words, unless it was obvious or should have been obvious to the server who provided the alcohol that the patron was already dangerously drunk at the time the patron was served, the victim will not be able to successfully sue the bar. Proving something that is so open to interpretation obviously requires compelling evidence. The evidence attorneys use to prove obvious intoxication comes in two forms.

  • Direct evidence is that which can be illustrated through the use of objective standards or measurements, such as blood alcohol content or the number of drinks sold on a receipt that belonged to the defendant.
  • Circumstantial evidence is the type of evidence that demonstrates the probability that something is true when taken in context with the surrounding circumstances.

In this article we will discuss the various types of direct evidence that best proves that the patron was obviously intoxicated at the time that they were served.


Questions Answered on This Page:

  • What is obvious intoxication?
  • How does a lawyer prove that a bar served an obviously intoxicated patron?
  • What type of evidence best shows that a bar violated the Texas Dram Shop Act?

The types of direct evidence of obvious intoxication that our attorneys look for.

Like any case (be it a breach of contract case, a charge of murder in the first degree, an accusation of negligence, etc.), an attorney who is representing the victim in a Texas dram shop case must prove several individual elements in order to win the case. However, most of what must be proved is rather easy to prove. For instance, it must be shown that the patron who consumed the alcohol and then hurt someone was an adult. Well, that’s pretty easy to prove, as are most of the other elements of the case. Again, the tricky part of these cases is proving that the patron was already drunk, obviously so, at the time that they were served additional alcohol. Once that threshold is crossed by the bar, then and only then do they incur liability for any subsequent injuries.

So the direct evidence that we seek in these cases are all of the type to best illustrate that the waiter or bartender knew that the patron was drunk. This includes the following types of evidence:

  • Amount of alcohol consumed – The amount of alcohol consumed is important to your case because this can demonstrate to a jury that based on the volume of alcohol supplied to an individual in a given time span, it is reasonable to conclude that the establishment knew or should have known that the person was intoxicated. This can be demonstrated through the dollar amount sold or the number of drinks purchased. For example, one person spending $100.00 an hour on alcohol or ordering 10 drinks in an hour could lead one to reasonably believe that long before the 10th drink the person was intoxicated, therefore the bar violated the law by serving them more. The evidence of the amount of alcohol consumed can be in the form of time and date stamped receipts showing the number of drinks purchased or direct testimony from other patrons or guests.
  • Rate of Consumption of Drinks – How quickly one consumes drinks can be key in illustrating the level or point at which they become intoxicated. For example, if a certain number of drinks are consumed in a shorter span, medical science tells us that the drinker will become more intoxicated than if the same number of drinks is consumed over a longer span. This is because when drinks are consumed over a short time frame, the body does not have the time to metabolize the alcohol that has been consumed, so the intoxicating effect compounds. Evidence of the time frame that the alcohol was consumed can be demonstrated through time and date stamped receipts and eye witness testimony.
  • Physical Appearance – The appearance of the person that is consuming the drinks can be a sign of intoxication as well. If they appeared at the bar already smelling of alcohol or had a strong odor of alcohol on their breath, one could reasonably believe they were intoxicated. Blood shot eyes, stumbling, trembling hands, slurred speech, and a disheveled appearance can all be signs indicating intoxication. Servers of alcohol are required by law to be on the lookout for these signs. If we can prove through eyewitness testimony, video surveillance footage, or (most commonly) through the bar tenders and servers admitting that they witnessed the drinker displaying such signs, then we are well on our way to establishing that they knew the patron was already intoxicated at the time of service.
  • Behavior or Emotional Outbursts – When someone’s behavior suddenly changes or there is a sudden disruption between them and the other patrons, this can be a sign of intoxication. If someone was originally mild mannered but is now acting belligerent, rude, or in an obnoxious manner and this change has occurred over the course of their drinking in an establishment, this can be a sign of intoxication. However, the behavior does not necessarily have to be negative. A person that suddenly becomes more friendly or emotional could be intoxicated as well. Responsible bars and restaurants train their employees to be aware of these signs so they can tell when a patron needs to be cut off. When these signs are ignored and a person that seems intoxicated is continuously served alcohol, that establishment could be liable for the resulting injured caused by that intoxicated person.

All of these examples reflect direct evidence of obvious intoxication. We encourage you to read our article on circumstantial evidence of obvious intoxication to learn about how that type of evidence is used.

Texas dram shop attorney Michael Grossman is here to help.

When you have been injured by a drunk driver, an independent investigation has to happen quickly. People’s memories fade, other events supersede, and evidence can be destroyed or lost before you know it. This is why it is so important to contact our attorneys at Grossman Law Offices after you or a loved one was in an alcohol-related accident. We know how to locate the evidence needed to prove your case. There may be video surveillance tapes we need access to before they are erased, witnesses that need to have their statements memorialized in an affidavit, statements from employees that worked the night in question, bar receipts, bank statements, as well as industry vendors such as delivery persons that need to be contacted as well.

The Texas bar or establishment that continued to serve the obviously intoxicated person alcohol is not going to hand you the evidence you need to establish their liability. You need tough and resourceful investigators and attorneys on your side to make sure they are brought to justice. Contact one of our experienced Texas dram shop attorneys today at (855) 326-0000.


Other articles about Texas dram shop cases that may be helpful:

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Call us anytime toll Free 1-855-326-0000