In Pennsylvania, New Jersey and most other states, bartenders can be held liable for serving alcohol illegally. Usually this legal responsibility, enshrined in so-called “Dram Shop Laws,” comes up in drunk driving cases. Prove that a driver was served alcohol inappropriately before an accident, and you may be able to sue the establishment that broke the law.

When it comes to serving alcohol, however, what’s considered illegal under state law is fairly complex. Just because a driver was drunk (even legally intoxicated by blood alcohol content) doesn’t always mean the bar that served them beforehand acted improperly. In these lawsuits, everything comes down to “visible intoxication,” and whether a server gave alcohol to a patron they should have known already had too much.

Visible Intoxication

Two, three or four drinks in, we quickly become incapable of making rational decisions, especially about how much more we should drink. Physical coordination goes out the window, as does muscle control in the eyes, blurring vision. But while the reasons to avoid alcohol before driving are numerous, what a drunk person looks like isn’t so clear.

Because tolerances vary widely, and alcohol is metabolized differently depending on body weight, people who register high blood alcohol contents may not look intoxicated in the slightest to an observer. We can’t expect bartenders to stop serving those people, even though they’d get hit with a DUI charge on the road, since by all appearances, they’re fine.

Thus we need another way of determining whether or not a patron was “visibly intoxicated” when they were served alcohol. But neither Pennsylvania nor New Jersey provide a detailed definition of “visible intoxication” in their dram shop laws.

How Do Bartenders “See” Intoxication?

To find an appropriate definition, it’s helpful to look at how bartenders in these states are taught to identify intoxicated patrons, based solely on “what can be seen,” a standard that has been repeatedly stressed by courts in both New Jersey and Pennsylvania.

Dozens of private companies in Pennsylvania offer “responsible serving” courses, but those approved by the state’s Liquor Control Board follow a curriculum loosely defined by RAMP, the Responsible Alcohol Management Program. Beyond how courts have interpreted specific cases, the liquor board’s guidelines are our best guide for figuring out which visible signs count toward intoxication.

Defining The Obvious

Pennsylvania’s Liquor Control Board defines “visible intoxication” as “a level of impairment that is evident upon common observation such as a person’s behavior or appearance.” Obviously, this definition defers most of its force to common reason, emphasizing the “observation[al]” powers of a normal person. Rather than the higher standard we would expect of someone trained to serve alcohol responsibly, the Board seems to imply that any reasonable person can make the determination.

A following statement, on the other hand, makes clear that “servers must use their skills and experience to decide whether a person is visibly intoxicated.” Can we expect a bartender’s “skill” in recognizing intoxication to be more refined than that of an average person? Quite possibly, and that’s borne out to some degree in the 9 visible signs of intoxication explicitly listed by the Liquor Control Board:

  • “loud speech,
  • boasting,
  • crude behavior,
  • drinking alone,
  • drinking too fast,
  • slurred speech,
  • ordering doubles,
  • buying rounds and
  • stumbling”

At least 3 of these “signs,” drinking too fast, ordering doubles and buying rounds, are behaviors even witnesses present at the scene are unlikely to pick up on. Not because they’re subtle cues, invisible to the untrained eye, but simply because most patrons aren’t paying that close attention. Defense attorneys will often argue, at times successfully, that a bartender’s training made them more discerning, and thus less-likely to overinterpret potential signs of intoxication than untrained witnesses.

The Board’s insistence on “experience” adds another nuance to the discussion. Bartenders often come to learn things about their regular patrons. Bob is a quiet man; Jane never brags about her accomplishments. If Bob becomes loud, or Jane boastful, that could be an effect of intoxication.

None of these behaviors, on their own, seem like much sign of anything. Some people are inclined to boast, whether or not they’re intoxicated. Exhibiting several at the same time, however, reduces the likelihood that we’re just noticing aspects of a patron’s personality, traits that would surface with or without alcohol.

A Matter Of Debate – & Evidence

In court, “visible intoxication” will always be a matter of interpretation. It’s a gray area, and a debate over whether or not a patron was visibly intoxicated often forms the core of dram shop lawsuits. The emphasis state laws place on “common observation,” however, opens the door for what usually becomes the most important bit of evidence in these cases: witness testimony.

Eye Witnesses

It takes a community to spot a drunkard. That is the lesson of many dram shop cases, both in Pennsylvania, New Jersey and elsewhere. Blood test results, while crucial to criminal cases, aren’t much use in civil lawsuits, although some attorneys use them as circumstantial evidence. Even in conjunction with expert testimony (usually arguing that the average person with a certain BAC probably would have appeared intoxicated), a BAC taken after an accident doesn’t go very far to prove that a patron was intoxicated prior to the accident, much less at the bar in question.

But finding a few other patrons, who were there, and can say “yeah, he seemed drunk,” is usually the key. Such evidence can also go to corroborate the testimony of a toxicologist, whose interpretations of a blood alcohol content reading would remain purely speculative without more support.

Bar Policies

Some experts, like Major Mark Willingham, a criminologist, former Fulbright scholar and graduate of the FBI National Academy, say that bartenders have a perverse incentive to over-serve their patrons. Bartenders make most of their money in tips, about 55% of their total income according to a recent estimate, but earning tips is all about winning over customers. For Willingham, that inevitably “equates to heavy pours of alcohol, frequent replenishment, and a wink and a nod at increasing intoxication levels.”

Licensed establishments do the public a double disservice here, forcing customers to subsidize servers and, in an effort to attract customers, offering promotions that encourage over-drinking, like “2 for 1” specials. Some attorneys have picked up on this idea, using marketing and promotional policies to suggest that a licensed establishment actively cultivated a culture in which serving beyond intoxication was encouraged.