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What Does Texas Law Say About Obvious Intoxication?

Under the Texas Dram Shop, alcohol providers are not liable for alcohol-related deaths and injuries just because they served alcohol to someone who was then involved in a crash. The Texas Dram Shop Act, the law which gives drunk driving accident victims the right to sue bars, clearly states that bars are not normally liable for injuries or deaths simply arising from intoxication caused by drinking at a bar. Rather, it states that bars are only liable when they serve a patron who was obviously intoxicated enough to become a danger to themselves or others.

This leads us to an important question. If a bar is liable only when they serve an obviously intoxicated customer, what exactly does obvious intoxication mean?

In this article, we'll discuss how the term obvious intoxication has been interpreted by Texas courts over the years and how it applies to a dram shop lawsuit. Be sure to also check out our Comprehensive Guide to Texas Liquor Liability Law as well.


Questions Answered On This Page:

  • How is obvious intoxication defined in court?
  • What evidence is needed to prove obvious intoxication in a dram shop case?
  • Are bars always liable for serving someone to the point of intoxication?

How Texas Courts Interpret "Obvious Intoxication."

Under the Texas Dram Shop Act, a provision of the Texas Alcoholic Beverage Code:

Sec. 2.02. CAUSES OF ACTION.

  • (b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that:
    • (1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and
    • (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.

What this means:

  1. Obviously intoxicated to the extent he presented a clear danger to himself and others. The person who received the alcohol must have been more than a little tipsy, but must have been so impaired that it would be apparent to any reasonable person that they were. Note the qualifying clause that the drinker was so intoxicated that he presented a "clear danger." This is the core of these claims---did a bar act in disregard of public safety? Did the bar know that the person wasn't just "having a good time," but posed a threat to others? This is obviously a fact-intensive inquiry, but it's not as subjective as it might sound.
  2. At the time the provision occurred. It's not enough to show that a bar or restaurant gave someone alcohol AND show that an accident happened, but that they gave a person alcohol when the person was already drunk.

Over the years, the courts have interpreted the main point of contention in a dram shop case (the obviousness of the drinker's intoxication) rather broadly. Essentially, intoxication is obvious if there are any signs of intoxication that a reasonably prudent bar tender should have been able to pick up on. So, whether or not someone is obviously intoxicated can be established through outward physical manifestations, such as the drinker slurring their speech, acting overly sexual, stumbling and falling, having trouble staying awake, etc., or the presumed obviousness can be considered a reasonable inference for a trained employee of a licensed provider. For instance, if a server knows (or should know) that giving a 150 lb woman 6 drinks in an hour is enough to make them incredibly drunk, providing a seventh would definitely imply that they negligently served someone who was obviously intoxicated. In that instance, the obviousness of their intoxication would be based on the server's knowledge or the knowledge they should have had, in that instance.

All that to say, any reasonable information that would indicate that a customer was obviously intoxicated at the time of service can be used to hold the vendor that served them accountable through a dram shop cause of action.

Proving "Obvious Intoxication" In Court

Proving obvious intoxication is a mixture of science, legal analysis, and painstaking litigation. We've succeeded at more of these cases than any other firm we know of in Texas, and we can count the times the bar has owned up to selling alcohol to an obviously intoxicated person on exactly zero hands. Since bars never admit that they did something wrong, the burden is on the victims and their legal counsel to prove obvious intoxication, which can be done using a variety of evidence:

  • Direct evidence of obvious intoxication.
    • Testimony from witnesses about the drinker's change in personality and behavior. This may include progressively louder speech, inappropriate behavior (obnoxious and unwanted sexual advances, taunting others with insults or racial slurs), or violence. It could also include witness testimony that the patron was stumbling, crying, slurring their speech, and or had admitted their intoxication to others.
    • Video evidence of drunken behavior. Many bars and restaurants have security cameras in the bar area. We've had many cases in which the patron can be seen on footage fumbling about, knocking over drinks, and starting fights.
    • The amount of alcohol served to the patron. If it can be shown through bar receipts and credit card statements that the recipient, say, opened a tab, ordered 7 drinks, and closed his tab an hour later, that would strongly suggest he was obviously intoxicated when served his last few drinks.
    • Blood alcohol levels. After a serious or deadly accident, blood is usually drawn in an autopsy or because a judge issued a warrant. A toxicologist can then extrapolate what the patron's blood alcohol level likely was when they were served the last drinks they consumed before the crash.
  • Indirect evidence of obvious intoxication.
    • Post-accident testimony. If a car accident happened and the investigating police officer could tell the driver was obviously intoxicated, that tends to support a claim that the driver was obviously intoxicated when served their last drink.
    • Clues about the accident. If a drunk person crashes into a wall before even making it out of the parking lot, that's a pretty good indirect sign that they would have been obviously intoxicated at the time they were last served.

Every case we've litigated is different, and some combination of the above varieties of evidence is usually involved in proving any given claim. But let us make one thing clear: proving these cases does NOT require an admission from the bar that they knew a patron was a danger to himself and others, but continued to serve them alcohol regardless. But it does require a lot of work to dig through the evidence, piece the story together, and present it to a jury.

Only a thorough attorney can prove your case successfully.

We can't physically go back in time to observe and record the drinker's behavior to prove your dram shop claim. Instead, your attorney must make a compelling case, based on facts from every attainable piece of evidence available that the drunk driver was over-served. Doing so successfully requires a firm like ours, with years of experience successfully litigating dram shop cases. If you've been hurt or lost a loved one in a drunk-driving crash, call our experienced dram shop attorneys at Grossman Law Offices, based in Dallas, TX, at (855) 326-0000 for a consultation.


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