The "Head Start"

From an economic perspective, things are not so great in Connecticut.  While some bars and restaurants are doing just fine thank you, others have seen their weekly revenue drop dramatically.  Folks far brighter than myself disagree on the causes, but I do have firsthand experience with one of the effects.  For lack of a better term, I’ll call it the “Head Start.”

Regardless of drink and door costs, we can agree that it’s cheaper to buy alcohol at a package store than a bar.  As such, I am seeing more and more situations where a plaintiff files a dram shop case against a bar, the person who injured them was clearly intoxicated shortly after leaving the bar, yet the bar owner and staff swear up and down that the alleged intoxicated person only had one drink or even no drink at all while on premises.  How does a patron get intoxicated on one drink?  The answer is the Head Start.  More and more patrons are warming up for a night of drinking by killing a pint or half pint of hard liquor in the parking lot, then entering an establishment to enjoy themselves on the cheap.

Although we’ve had several cases where patrons enter an establishment after drinking in the parking lot, one case I tried some years ago illustrates the problems and legal analysis of a patron with a head start.  In this instance, two patrons left a bar in Waterbury at closing time.  While travelling back to Hartford on I-84, the driver lost control of the car at well over 100 MPH.  The vehicle rolled, the driver died, and the passenger had numerous injuries.  The blood alcohol level freezes at the time of death as the liver is no longer metabolizing the alcohol, so the BAC we had was the BAC literally at the time the collision occurred.  Assume the BAC was a .15, which is generally accepted as the cusp of visible intoxication.  Below .15, less than half of people show signs of intoxication while over .15 more than half do show signs.  As the driver had been at the bar for at least an hour prior to the collision and was seen drinking beers, the initial assumption was that his BAC had peaked and dropped to a .15 at the time of death.  Since he had been higher than .15, it was more likely than not that he was showing signs of intoxication at the bar.  The bar had a problem.

On further investigation, we learned that the plaintiff and the driver had mixed up a bottle of vodka and Red Bull which they brought with them to the bar.  They drank the entire bottle in the parking lot within roughly 20 minutes before walking into the bar.  As a general concept, alcohol takes about 20-30 minutes to transfer completely from the stomach to the bloodstream.  The bar had both security and off duty police checking ID’s at the door, and no one recalled any intoxicated people trying to enter.  Since the bottle was finished within minutes of entering, the alcohol hadn’t yet fully entered the bloodstream, so the driver and passenger looked perfectly sober.  The driver walked directly to the bar, ordered a beer, and was lost in the crowd til closing time. 

When I initially analyze a liquor liability case, I always start with the final BAC and work my way back through the events and descriptions of the evening to see if the amount of alcohol described adds up to the final BAC.  In a surprising number of cases, the amount consumed is nowhere near enough to reach the final BAC.  In this particular case, I realized (with the help of Dr. Joel Milzoff, toxicologist) that the driver hadn’t come down to a .15, but in fact had come up to a .15 as the amount he quickly drank was still going from the stomach to the bloodstream at the time of death.  As he was below a .15 at the bar, he was not likely showing any sign of intoxication while there.  The case resulted in a verdict for the bar. 

So what is a bar to do?  Most bars focus on a patron’s condition as they walk in the door and assess the patron each time they order a drink.  The later a patron enters, the more scrutiny a patron gets as they may have been drinking elsewhere.  Consider, though, that the only other place a patron may have been is the parking lot to “warm up” for some inexpensive good times.  The time that the patron enters is meaningless.  I tried another case where a patron entered for lunch at 11:30 and was stone drunk by noon.  The only logical conclusion in that case was that the patron had drank a half pint of liquor on the way from home to the bar.  Once again, in that case the drink consumed in the bar could not possibly support the BAC taken shortly after the collision.  Many safe alcohol service programs teach drink counting, where the bartender uses the drinks ordered to give a rough calculation of a patron’s intoxication level.  Unfortunately, there is no way for a server to count drinks in the parking lot.  The lesson in all this is not only to observe a person’s condition when they enter the bar or order a drink, but to understand that their level of intoxication may have nothing to do with what they’re being served.  If a person suddenly starts showing signs of intoxication soon after entering the premises, the “head start” may be entering the bloodstream fully.  Understand that regardless of the amount served, it is the bar that will be accused of serving an intoxicated person.  If a drink was served, save the register receipt.  If no drink was served, jot down the names of the employees who can attest to that. Saving the evidence will give the establishment a “head start” of its own. 

For more information or any questions regarding this article, please contact Attorney Jan Trendowski at Jan Trendowski@TrendowskiLaw.com.