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Who Says You're Drunk?

Bars and bartenders may help you tie one on – but they're also expected to cut you off just this side of 'intoxication'

By Chase Hoffberger, Fri., July 5, 2013

Who Says You're Drunk?

At 4am on the morning of Sept. 22, 2011, 23-year-old Erica Lynn Nash-Wood took a wrong turn off Highway 360 and ended up driving nearly two miles east in the westbound lane of Ben White Boulevard before crashing her four-door sedan into a Tombstone Pizza delivery truck. The collision caused the truck to catch fire, and sent 22-year-old Christopher Peart, Wood's passenger, flying from the car – he died on impact.

Nash-Wood and the delivery driver were both taken to University Medical Center Brack­en­ridge and treated for injuries. Questioned from the emergency room, Nash-Wood told police she drank so much whiskey that night that she couldn't even remember where it was she had consumed it. Investigations into her whereabouts eventually revealed that she'd spent at least a part of her night at Sixth Street's Blind Pig Pub.

Nash-Wood pleaded guilty to intoxication manslaughter with a vehicle and aggravated assault with a deadly weapon on May 2, 2012, and was sentenced to 120 days in jail, among other alcohol-related provisions.

Nine months after Peart's death, on July 1, 2012, another young man was killed when 25-year-old Jarrett Ryan Whittington drowned in Lady Bird Lake after getting stuck in the backseat of a silver Honda Civic that the driver, 25-year-old Madeline Rackley, had driven off East Avenue.

Police officers who happened to be parked under the Interstate 35 bridge at the time suspected that Rackley, who'd been hanging out at Lustre Pearl on Rainey Street before the accident, was trying to access an on-ramp onto the highway when she instead turned onto the boat ramp on the south side of the dimly lit parking lot. Those police were able to pull Rackley and her front-seat passenger Danielle Martinez from the car. Once on shore, the two women told police that Whittington was still stuck inside the car – but it was too late. He was pronounced dead at 5:59am. Rackley, who already had a DWI conviction three years prior, was charged with intoxication manslaughter and aggravated assault with a deadly weapon.

On May 29, the parents of both Whit­ting­ton and Peart filed lawsuits against the Lustre Pearl and Blind Pig, respectively, alleging that the two bars overserved both drivers to the point that they provided a clear danger to themselves and other persons. Both lawsuits were filed under the classifications of wrongful deaths, a civil action generally brought by a victim's family. Whittington's lawsuit went a step further, implicating not just the bar, but two of its bartenders, as well as its owner, Bridget Dunlap, and her husband Chris Parker.

"The wrong done by [the] defendants was aggravated by the kind of gross negligence, malice, and callous disregard for which the law allows the imposition of exemplary damages," reads the complaint against Dun­lap and company, which the Austin American-Statesman reported seeks more than $100,000 in damages. "Defendants ... were aware of the risk, but proceeded to sell alcohol to a clearly intoxicated person that night with conscious indifference to the rights, safety, and welfare of others."

Another of Dunlap's establishments, Clive Bar, also located on Rainey Street, was in headline news this winter after former Capitol staffer Gabrielle Nestande left the bar on May 27, 2011, and, while driving home, perpetrated a hit-and-run collision on a pedestrian, Courtney Griffin, who died from her injuries. In February, Nestande was sentenced to 10 years probation and a $10,000 fine.

Currently, the Texas Alcoholic Beverage Commission, the agency that oversees the licensing of businesses to sell alcohol, holds "pending cancellation case(s) against the Lustre Pearl." No action has been filed against the Blind Pig Pub.

A Public Duty

Bars welcome drinkers but are expected to police them, too.
Bars welcome drinkers but are expected to police them, too.
Photo by John Anderson

It wasn't always the case that your bar could get popped because it served you booze.

Early common law in Texas did nothing to impose liability on bar owners for damages sustained as a result of drunken action, largely because, as Houston trial attorney Spencer Markle noted in a 2007 presentation, courts believed "the consumption, rather than the sale of service of alcohol, was seen as the sole proximate cause of the patron's intoxication and the subsequent injuries to the third party ... and, even if the sale of alcohol to the patron were an actual cause of injuries to the third party, these injuries would be unforeseeable and, therefore, not a proximate cause."

The standard began to change when, on the evening of Jan. 21, 1983, a blacked-out Rene Saenz left an El Chico restaurant in Houston's Northwest Mall and hit another driver, Larry Poole, who was soon pronounced dead on the scene.

The Texas Dram Shop Act, named for the legally recognized pseudonym for bars and taverns, took effect in 1987, four years after Poole died, when the Texas Supreme Court ruled an intoxicated person is "by definition not an able-bodied nor able-minded person." More than that, the court agreed that we as a society had reached an age in which automobile accidents can no longer be considered unforeseeable. Any drunk with car keys and a set of wheels could drive 3,500 pounds of Hyundai Sonata 50 miles per hour into an innocent object or individual.

"An alcoholic beverage licensee owes a duty to the general public not to serve alcoholic beverages to a person when the licensee knows or should know the patron is intoxicated," the court ruled in El Chico Corp. v. Poole. The dram shop bill was approved by the Texas House and Senate with a vote of 171 to 2 on June 7. Four days later, on June 11, bartenders were told that they were to double as babysitters.

Today, the Texas Dram Shop Act lives on in Chapter 2, Section 02 of the Alcoholic Beverage Code, the collection of statutes the TABC uses to administer policy: "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 ..." if, among other things, the bartender sold a drink to someone who was "obviously intoxicated to the extent that he presented a clear danger to himself and others" and that "the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered."

Bartenders can serve, but they cannot overserve. And they can be held liable because they might have helped to get you drunk.

Vague by Design

The Texas Alcoholic Beverage Code provides no specific definition for "being overserved."

"TABC utilizes the definition of 'intoxicated' as defined in the Texas Penal Code, Section 49.01," TABC Public Information Officer Robert Saenz offered via email, "which reads: not having the normal use of mental [or] physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substances into the body."

It's a definition DWI attorney Adam Reposa describes as "nebulous."

"I don't think it's a mistake," Reposa said of TABC's unclear overserving standards. "I think it's by design. The whole idea of rules are supposed to create inclusion and exclusion. [TABC's] rules are designed to be completely inclusive, then leave up to discretion what's excluded. They're written such that, if [TABC] wants to find a violation, it ain't gonna be hard.

"You're a bar. You serve alcohol. All [TABC has] to do is go in one night, and they'll be able to find someone pretty quickly who they can say has been overserved. And if they're wrong: 'Oh well.' That's just kind of the way the game's played."

The general gist of TABC's overserving standards suggests that bars are responsible for cutting off any potential patron deemed to be intoxicated in the slightest. There's no legal standard for this; no statistic drinkers try to avoid on a Breathalyzer. Intoxication is perceived by slurred speech or signs of incontinence, impaired balance, bloodshot eyes, and general dishevelment, among other characteristics. Should a bartender or bouncer witness any such activity, the individual in question is considered drunk, and should be barred from getting served again. Any incident in which a bartender sells that individual an alcoholic drink rather than handing them a glass of water, or telling them to leave the bar altogether, is a case of overserving. The bar, and potentially the bartender, becomes responsible for any damages incurred as a result of that drunkenness.

Bar employees are taught through the TABC Seller Training School curriculum about the laws pertaining to intoxicated persons, how to detect intoxication, and how to best monitor customer behavior. They're told to carefully observe customer behavior prior to the first drink being served. "A short interaction with the customer will tell the bartender a great deal about the customer's condition," Saenz wrote. "They should work very closely with management and with door staff to ensure that intoxicated persons are not allowed on the premises."

A problem arises when you try to separate the buzzed from the unbuzzed without an official barometer, however. Not showing your drunkenness is an art form, a talent some people have perfected after honing their craft for years. Drinkers will employ all sorts of techniques to throw on a straight face, in some cases jumping from bar to bar in an effort to block surveilling bartenders from having a frame of reference. Last week I personally ordered four drinks from one bar after classifying myself as too inebriated to move my car.

"I can get drunk in one bar and walk down the street, throw a wink and a smile to a door guy, and get into any other bar Downtown, no question," one bar-hopper on East Sixth Street explained. From there, it's just a matter of not slurring "gin and tonic," and you're another step closer to hammered.

That step also brings the bar you're inside more business, which is likely why it opened its doors in the first place. You're a target of marketing every time you take a step down Sixth Street: liquor pitchers, "$1 you-call-its," 2-for-1 beer specials.

"My idea of a balanced diet is a beer in each hand," read one meme the Blind Pig posted to its Facebook page on May 18. A similar one was posted on the same page June 5, seven days after receiving word of the lawsuit. "Like if you had a game-over moment this weekend," it reads, above a photo of a silhouetted figure vomiting into a toilet.

"There's not a live music venue in this city that would be successful without booze, let alone a bar," explained one bar owner, who asked for anonymity. "We're never going to get people to stop getting drunk. We already learned that in the Twenties. So we need to accept that and figure out how to do this all safely."

A Moral Compass

For Nathan Hill, co-owner of the White Horse honky-tonk on Fifth and Comal, staying safe is a matter of common decency.

"It's about the rules that TABC's set and having a moral compass of knowing what to do when it comes to serving people," Hill said. "That's whether it's alcohol or food. You don't spit in somebody's food just because the health department said you shouldn't – you don't spit in somebody's food because it's the wrong thing to do. You don't serve drinks until somebody's blackout drunk, because you don't want somebody to go out and get hurt."

Hill and his partner Denis O'Donnell said they recently held an all-staff meeting designed to explicitly address the cost of overserving patrons. "It starts with the door man, engaging people in conversation and figuring out if they're drunk or going to be a problem," O'Donnell explained. "We catch half of our problems right there. Then, it's about our security guy, who we pay to roam the floor making sure everybody's safe. If anyone inside is intoxicated, a message immediately goes to the bar manager, who informs the rest of the bar staff.

"We're working with a whole team of people who are doing their best to keep up with a room packed wall-to-wall with people that come here to drink alcohol – not just because they like the way it tastes. We do everything that we can to throw that party within the scope of safety and reason. The nature of imbibing alcohol itself is something that treats everybody different. It could go from 0-100. A girl's fine one minute, takes a shot, and it hits her on the patio."

Or maybe she takes a Xanax, a drug designed to moderate anxiety and panic attacks that doubles as the most misused benzodiazepine in the country. O'Donnell recounted one time quite recently when he was alerted to a girl outside who had passed out after taking a pill and then walking into his bar.

"Didn't even have one drink, but she's laid out on the bench in front of my bar, with the EMS and police there," he said. "I'm frantically wondering what happened; ask the door guy what happened. He said she was fine when she walked in. Every bartender in the building said that they didn't serve her. If her friends didn't stand up and say that she took drugs, then who's the bad guy? What if she'd gotten in a wreck?"

Getting People Home

The Sixth Street party crowd
The Sixth Street party crowd
Photo by John Anderson

O'Donnell's concern speaks to the real issue behind Texas' Dram Shop Law: keeping drunk drivers safely off the state's roads. People are going to get drunk; as that bar owner said, Prohibition didn't work out too well. The goal right now is – or should be – to get them home as safely as we can.

DWI arrests in Austin have run along an inverse bell curve over the last five years, capping at 6,644 in 2008 and bottoming out in 2011, at 5,166. But 2013's first five-month split has already eclipsed any January-May figures that existed during the previous five years. In that time, more than 2,770 drunk drivers have been arrested for driving with blood-alcohol levels registering over the legal limit.

It's speculation to suggest that fewer of those arrests would have occurred if Austin found a few better ways to get people home safely – but, when you look at the options available to drunks, such speculation is not that far-fetched. City Council voted in Nov­em­ber to grant an additional 30 new taxicab franchise permits – a decision hotly contested by area cabbies, who said the new cabs weren't warranted and indirectly undermined their fares, though those bar patrons who wait along Downtown sidewalks at closing time on weekend nights might beg to differ.

Indeed, it may even be that at least one factor diminishing the supply of ready cabs at closing time is the APD. Apparently, according to a recently filed lawsuit, police officers make a practice of commandeering taxis to transport obstreperous drunks to their homes. The Texas Civil Rights Project sued on behalf of a driver who says he was attacked and injured by a passenger forced upon him by police officers; the complaint alleges, "APD officers have a persistent widespread practice of forcing taxicab drivers into service transporting intoxicated persons to their homes." (The APD has thus far declined to comment.)

Capital Metro's MetroRail line – which heads east from the Convention Center and then cruises up Airport Boulevard to North Austin, Cedar Park, and Leander – is a cheap, safe, and clean option for those it can service, but timing is a real issue. Bars close at 2am; service out of Downtown shuts down Friday at 12:30 and midnight on Saturday. Those looking to get drunk on weekdays are even further out of luck: Monday through Thursday, the last MetroRail leaves Downtown station at 6:30.

Service extends via Capital Metro's bus system, though unless you're going home early or live along one of five Night Owl routes – Lamar and Rundberg, Oltorf and East Riverside, Victory Drive and Ben White, Cameron Road and Rutherford Lane, and William Cannon at Nuckols Crossing, all of which leave Downtown every 20-30 minutes until roughly 4am but make limited stops – you might well find yourself stranded at a bus stop, either Downtown or miles from your home. The final call for local lines sounds at 12:17am for those looking to cruise up Lamar on Route 1M, and 12:48 for anybody heading to East Riverside Drive on Route 20; those are the two latest-running local service routes on the schedule.

Alternative methods of getting drunks home has proved even less fruitful. Tipsy Taxi, a service that functioned like an independently operated cab service for drunks, offered rides for $5 plus an extra $3 a mile, but it folded in 2010 when it couldn't maintain enough income to keep running at night. Same goes for Zingo, a student-initiated operation that involved sober drivers riding foldable scooters to cars, putting the scooter in the car's trunk, and providing drinkers with a safe ride home for a slightly higher cost. Contacts for Tipsy Taxi and Zingo have all been disconnected, but an April 2010 Yelp review for Zingo remains: "So maybe I was drunk, but the number wouldn't connect and 411 couldn't find you guys. We drove home blitzed!"

In sum, it's all well and good for the TABC to cite bars and bartenders for "overserving" (if indeed they have done so), and to hit drunk drivers hard for negligence or worse if they recklessly drive while intoxicated. But in the live music capital of the world, it's a not-very-polite fiction that most folks out on the town at night are solely seeking an evening of entertaining contemplation.

There are all sorts of reasons Austin (and Texas) needs to invest more broadly and deeply in comprehensive forms of mass transit, and preventing drunk driving is perhaps not at the top of the list. But it is definitely on the list – if you're sober enough to read it.

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