Legal lapse exists in drunken driving liability

When it comes to cases of drunken driving, the law has been heavily influenced by the insurance companies. (Courtesy photo)

This week’s question comes from Trisha N. in Hayward, who asks:

Q: “My son and his friend were home from college and were out at the movies when a young man, who was drunk, ran into them and caused some really bad injuries. All I know so far is that the kid was coming from his uncle’s house, where there had been a New Year’s Eve party where alcohol was present. There was a 1/4 full bottle of vodka in the trunk in the bag it came in. The receipt showed he purchased the alcohol at 12:30 a.m. The kid blew a .21.”

A: Trisha, I am truly sorry to hear that your son and his friend were injured by actions of a drunken driver. As a lawyer who handles serious injury cases, I am sad to say that this is not the first time we have seen a case of this type.  We currently have five such cases that we are prosecuting.

The law in this area is, in my opinion, completely unfair and results in more people driving drunk. It would seem to make sense that the people who sell alcohol, or provide it at parties, should be liable in a civil case if they serve an obviously intoxicated person. While it may result in an arrest and conviction as a misdemeanor (punishable by less than one year in jail), the legislature has declared that those who sell or give alcohol to obviously intoxicated persons, with limited exception, are immune from civil suits for the monetary harms and damages caused by those drunkards.

It should come as no surprise that the law in this area has been heavily influenced by the insurance companies and, through their significant financial influence in politics, there is no civil responsibility for bars, restaurants or homeowners who serve alcohol to an obviously intoxicated patron or guest, to pay for the damages caused to others.

California Civil Code Section 25602 states that every person who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage to any habitual or common drunkard or to any obviously intoxicated person is guilty of a misdemeanor; however, no person who does so shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage. This is commonly referred to as Social Host Immunity (for private persons) and/or the Dram Shop Immunity (for commercial vendors: bars, liquor stores, etc.). Therefore, if the evidence is that the person who hit the car your son was in became intoxicated while at his uncle’s house, and if he is an adult, the uncle is not liable for civil damages. Likewise, the liquor store would not be responsible.

There is an exception to this rule — if the obviously intoxicated person is a minor, liability may exist. Section 25602 (d)(1) states that nothing shall preclude a claim against a parent, guardian or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, in which case the furnishing of the alcoholic beverage may be found to be the proximate (legal) cause of resulting injuries or death. The reason given by the legislature for this law — found in Civil Code Section 1714 — is “that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.” Section 25602.1 of the Business and Professions Code applies the same standard to businesses that sell alcohol to minors.

The law pertaining to the exception for minors was authored by then-Assemblymember Mike Feurer (now Los Angeles’ City Attorney) and was sponsored by the Consumer Attorneys of California (CAOC) and Mothers Against Drunk Driving (MADD) in the 2010 legislative session while I was President of CAOC. The law arouse out of the 2008 tragic death of Shelby Allen when, after consuming copious amounts of alcohol, Allen died from alcohol intoxication with a .33 BAC.

So, Trisha, I don’t have enough information but, if the drunken driver was an adult driving his own car, there is most likely no civil liability against the uncle or the liquor store. If the driver was a minor, potentially both the uncle and the liquor store may be liable. You can bet that the uncle will say the driver was fine when he left his home and must have gotten drunk with the vodka bought from the liquor store. The liquor store will claim the opposite.

Find a good contingent-fee trial lawyer who can help you evaluate the facts and liability.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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