“Can restaurants take your keys if you are intoxicated?”

by Walter Olson on August 6, 2013

The Maryland high court recently declined an invitation to discard the common-law rule against server liability in a case where a patron of a Gaithersburg craft brewery got on the road and caused a fatal accident. Washington Post columnist Robert McCartney wrote in favor of the wider liability rule, and I responded in a letter to the editor just posted at the newspaper.

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Maryland roundup - Overlawyered
08.08.13 at 3:45 am

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1 prior probability 08.06.13 at 1:07 am

So it’s okay to let your customers drink and drive? Freedom has to stop somewhere. Plus, common law rules evolve over time … Frankly, the law should impose absolute liability on bars and restaurants; otherwise, innocent victims of DUI’s might not get compensated for their injuries

2 William Nuesslein 08.06.13 at 8:36 am

People buy life insurance to compensate for bad luck. The problem with compensation by litigation is that payout is determined by the emotions of a jury and the coupling of benefit to premium is severed.

Good letter, Mr. Olson.

3 Jeff Manor 08.06.13 at 9:22 am

Mr. Olson didn’t say that it was OK for their customers to drink and drive. What he basically said was that there would have been legal implications if the Maryland courts had created new law by holding the Dogfish Head Brewhouse. If new law is required, then it should be up to the Maryland legislature to develop and to clearly define the responsibilities of the establishments.

4 Roy B 08.06.13 at 9:34 am

When a customer orders their second drink, they hand over their keys. To get the keys back they must pass a breathalyzer test. If they fail, they go home by cab.

5 jt 08.06.13 at 9:52 am

Roy, what if the customer claims they did not drive, or rode with a friend, or brought two sets of keys? If they lie and then drive away and crash, is the bar liable for not strip searching them too?

6 Shtetl G 08.06.13 at 10:44 am

Coming soon to Overlawyered, Bar Patron sues restaurant for false arrest and illegal detainment.

7 Ron Miller 08.06.13 at 12:44 pm

Jeff, the Maryland courts made the law. The legislature did not. Arguably, at least, they can be the ones to fix it. The problem is the legislature says “The court made the law” and the court says “the legislature should best handle this.” Certainly, if the legislature can always change the common law at their pleasure.

“Emotions of a jury” is tossed around like an invective. Are you saying they can’t see past their emotions and make the right decision? Is this a problem with Americans or humans in general? My concern, if you are right, continues to be why we are letting these people vote in elections. Should the smart people who are able to figure out that the common man can’t make the call on these things be the ones to decide everything? I think it is inconsistent to believe the juries can’t be trusted but voters can. I think your argument is the same argument to support a dictatorship.

8 Melvin H. 08.06.13 at 2:03 pm

Roy: “Second drink”? In how long a time period? Would it be different for women vs. men ( women generally–all else being equal–have a higher BAC than men, even with exactly the same drink and number of drinks)? Second Beer versus second mixed drink?

9 Jack Olson 08.07.13 at 10:17 am

To require bartenders to detain people by force if in the bartender’s opinion the customer is too drunk to drive is to give bartenders the power of policemen and require them to use it. The state of Maryland thus pushes its responsibility, that of enforcing its DUI laws, onto private citizens without deputizing them. If the customer resists by force, is he resisting arrest?

10 Ed 08.07.13 at 2:10 pm

God forbid that we hold the adults responsible for their own actions.

11 Ron Miller 08.07.13 at 5:00 pm

I agree with Jack on all of that.

Accordingly to the statistics cited in the dissent in this case, someone dies every 80 in Maryland alone because they got drunk at a bar or restaurant. Some of those people dying every 80 hours are kids. So that whole “Adults be responsible or face the consequences” thing is not working so well.

12 peter 08.08.13 at 8:59 am

@jt and Melvin H. Too right!

Should a bartender keep an eye on his customers to see if any are getting loud, argumentative, violent or out of control. A good one should, but there is a world of difference between ‘doing a good job’ and ‘being liable for’. Some lawyers can’t (or won’t) see the difference.

13 Ron Miller 08.08.13 at 9:22 am

I’m respect your position Peter but you are comparing apples to oranges. One problem causes strife and occasional serious problems. One is killing our citizens – and innocent bystanders – in massive numbers.

It is worth nothing that most states have these laws now.

14 wfjag 08.08.13 at 10:53 am

“So that whole ‘Adults be responsible or face the consequences’ thing is not working so well.”

Then lobby the MD legislature to raise the required minimums for auto liability insurance coverage, including adding an additional coverage charge for anyone ever convicted of DUI — and put the costs back on those causing the risks. It might convince a few of them to either take cabs, have a designated river, or not drink and drive. The current policies do not put the burden on those creating the risks, and so there is no pressure on them to change their behavior.

15 Ron Miller 08.08.13 at 12:29 pm

Wfjag, I don’t necessarily disagree.

We just got the minimum policies raised from 20k to 30k. It was an easy thing to do that only took 38 years to accomplish.

But the biggest goals with dram shop is not more compensation for victims. It is to try to discourage bars, etc. from over serving.

It is not the only option to solve the problem. What would work better, I think, than dram shop liability would be more painful punishment on those caught. The problem is that it is a “it could happen to you or your neighbor” kind of crime and no one is willing to make the drunk driver go through the level of pain that would be required to make a greater dent in the problem.

16 gitarcarver 08.08.13 at 3:24 pm

Then lobby the MD legislature to raise the required minimums for auto liability insurance coverage, including adding an additional coverage charge for anyone ever convicted of DUI — and put the costs back on those causing the risks.

While I agree with the sentiment, instead of increasing insurance costs (which no matter how well intentioned will be spread out over every driver or result in more people driving without insurance), to me a better solution is to increase penalties for driving while intoxicated (and the resultant damage.)

I realize there is a concept that says a drunk cannot form the intent to commit a criminal act, but I would argue the the intent is formed when the first drink is taken. People know the outcome of drinking too much. In the case which forms the basis of the original post, the patron admitted he went to the bar to get drunk. I have a hard time not seeing that as “intent.”

Furthermore, I can’t find the same exception for “intent” in such crimes as domestic violence. If a drunk husband beats his wife, I don’t think there is a part of the statutes (at least in Florida) which say the husband serves less time because he was drunk than a non-drunk abuser.

I hate to say this, but I wonder if the argument for blaming the server(s) has roots in being able to sue more people than just the petson who committed the act.

17 Dwight Brown 08.08.13 at 3:59 pm

“But the biggest goals with dram shop is not more compensation for victims. It is to try to discourage bars, etc. from over serving.”

Is there any evidence that the drunk driver in this case was “over served”?

One of the things I noted when I read this editorial (and wrote about it on my blog) was that the drunk driver supposedly had 17 beers and 1 shot over a five hour period. That’s roughly 3.6 drinks an hour, assuming they were equally distributed over that time. Assuming that he weighed 200 pounds, according to this chart:

http://www.brad21.org/bac_charts.html

he’d be right on the border between 0.06 and 0.08.

I realize there are a lot of assumptions in the above, but that’s because we don’t have the information. We also don’t know what his actual BAC was, because he apparently fled the scene and was arrested 12 hours after the accident.

18 gitarcarver 08.08.13 at 10:12 pm

Mr Brown,

Are you sure of your figures / conclusion?

The chart at the site you reference doesn’t go as high as 17 drinks, but I am not sure you need to.

At 10 drinks for a 200 pound man, the chart shows a BAC of 0.19. As per the instructions, you subtract 0.01% for every 40 minutes of drinking. In this case, that would be a deduction of less than 0.08%. (5 hours = 300 minutes divided by 40 minutes is 7.5 multiplied by 0.01 is 0.075. )

That’s a final BAC of 0.115 with only 10 drinks of 18 in the formula.

If you throw all of the numbers and time into this BAC “calculator”

http://bloodalcoholcalculator.org/#LinkURL

the estimated BAC level is 0.281%

Respectfully, I think your number is low.

19 peter 08.09.13 at 3:56 am

@Ron. Have you googled ‘deaths from bar fights’ recently? But my comment was certainly not about comparing how serious various drinking related problems are. It was supposed to be pointing out where a Bartender’s can assist in reducing problems from drunkenness and try to distinguish that from criminal liability. jt pointed out the first problem. How is a bartender supposed to ‘know’ that in a crowd of patrons, which of each of them drove (and will be driving home) and which of them has had only 1 drink, or has had 2 or 3 drinks? How will he know that the guy in the corner who has had only one drink before he gets up to leave, had 5 drinks before he arrived? Just some examples of some practical problems which need to be answered before we can fairly push the liability of drunken driving onto the bartender.
Of course if he decides that someone is too drunk to drive and intends to drive home, under what legal authority is he allowed to stop them (with sufficient authority backed by law so he is not sued each time). Is he just allowed to ask for the keys, or can he remove them by force.

I have also to be convinced that this is little more than casting around for someone with deep pockets/insurance to sue.

20 Ron Miller 08.09.13 at 9:58 am

“Mr. Eaton began drinking beer and liquor at 5:00 pm, allegedly ordering fourteen bottles of beer and two drinks of hard liquor and drinking at least one other drink that was purchased for him. Mr. Eaton stopped drinking at about 10:00 pm that evening and left, but returned to the Dogfish Head about forty-five minutes later and allegedly ordered three more bottles of beer and a shot of tequila.”

Actually, that is 20 drinks. But let’s call it 10 just for fun. Mr. Brown, you think it is possible this guy was not drunk? Is there anyone out there – anyone at all – who agrees with this?

Here’s another question: forget the law, does anyone think that it is not immoral to continue to serve someone under this scenario?

21 Ron Miller 08.09.13 at 1:48 pm

Peter, we are not talking about strict liability or absolute liability here. This is negligence where reasonableness will be the guide. The facts of this case are (1) guy drinking alone, and (2) 20 drinks.

Listen, I do realize there are going to be factual problems. I once wrote a blog post many years ago opposing dram shop laws for this very reason. ( I tried to find it to reference it for you but couldn’t find it. But I swear it exists somewhere.) But times change and I think the drunk driving problem has reached a critical mass where we have to try something different. Because we are no longer making any progress. It is like we are repeatedly looking for our car keys in the same drawer over and over again. These commercials and billboards telling us not to drink and drive are just not working.

You see it as a “lawyer trying to get into deep pockets” issue. I’m sure there is some truth to that. But with good dram shop laws, the joke is on the plaintiffs’ bar because less drunk driving deaths is going to have a bigger impact on our bottom line than the few times we can make a dram shop case.

22 Tamara 08.09.13 at 2:54 pm

I weigh 104 pounds, and my 6’3″ husband weighs 195 pounds.

Given that women often weigh less than men, and that alcohol often affects women more strongly than it does men, do barkeeps also need to have different standards for women vs. men?

Who’s going to be the first to shriek #WarOnWomen! when a bar starts taking the keys of their female patrons after just 1 drink, but lets their male patrons have 3 before they demand the keys?

And do fat chicks get more leeway? “Excuse me, ma’am, do you mind stepping onto this scale? Oh, okay, you weight 175. We’ll let you have one more drink before we take your keys off you”.

And what if someone is also on some kind of medication that exacerbates the effects of alcohol? Or has “pre-gamed” by having several drinks at home before going out?

Or what about a shiftworker stopping in for a couple of beers on his or her way home? Someone having two beers after having been up all night might be more affected than normal “happy hour” patrons.

It’s just too complicated. And some female or racial minority who feels they’ve been “unjustly targeted” is going to sue, that’s a given.

It’s just an unworkable idea.

23 Tamara 08.09.13 at 3:00 pm

And just out of curiosity, does anyone have some figures as to what proportion of drink drivers involved in accidents have come straight from bars, pubs or restaurants; and how many have come from private premises?

I only ask because the only two people I personally know who’ve got done for drink driving have been (a) a woman in our neighborhood who drove up onto a curb at 3:30pm, and was found to have been drinking at home before picking up her kids at school; and (b) a co-worker who got dinged driving home a few blocks from a friend’s barbecue.

What proportion of drink drivers are we actually going to get off the roads by deputizing bar & restaurant personnel as “drink driving police”?

24 Hugo S. Cunningham 08.09.13 at 4:01 pm

gitarcarver wrote:

>If a drunk husband beats his wife, I don’t think there is a part of the statutes (at least in Florida) which say the husband serves less time because he was drunk than a non-drunk abuser.
[end of quote]

Some 20 or 30 years ago, a death penalty appeal raising this question went up to the USSC– whether because the defendant was drunk (or stoned), he deserved a lesser penalty because he [may have] had lesser criminal intent. The USSC rejected this argument.
(I tried to find it with a Google search, but got a flood of cites involving representation by drunken lawyers.)

I might have been willing to accept an impairment doctrine if the USSC applied it in both directions: the first time someone commits a crime while “under the influence,” they would get a reduced penalty. Said reduction, however, would bring permanent notice to stay away from intoxicants that might reduce inhibitions against criminality. For any future crimes, intoxication would be considered an *aggravating* factor.

25 Melvin H. 08.10.13 at 2:26 am

Tamara, A quick note on one point of yours: Fat does NOT absorb alcohol! That is a reason that a man and a woman, of roughly equal height and weight, and drinking the same amount–come out so differently; the woman has a much higher BAC than a man does.

(Believe me, I was surprised to learn this [in the training I had to go through to serve alcohol---even though I am not a bartender, I had to go through the course to be able to serve], otherwise I theoretically would be able to drink a whole lot {at 6’1″, 380 lbs.}. I don’t drink simply because I never got the taste for alcohol, and it’s a whole lot more expensive drink-for-drink compared to soda.)

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