A Felony DUI Defendant and a Dram Shop Plaintiff

Most attorneys have very limited options when defending felony DUI defendants, but the “play book” is about to grow …
If anybody can help a felony DUI defendant, it’s the victim. So why would a victim be willing to try to help a DUI defendant?

Dram Shop cases are brutally difficult to prove in Florida. Judge Sawaya summarizes Dram Shop law exceptionally well, so the following explanation comes (word for word) from Florida Personal Injury & Wrongful Death Actions §11:5 (West 2014-2015):

The Elements
In order to establish liability pursuant to Fla. Stat. §768.125, the plaintiff must show:
1.      Defendant served alcohol to a person who got intoxicated;
2.      The person served was habitually addicted to alcohol; and
3.      The defendant served the person knowing that he or she was habitually addicted to alcohol.

Question: Who is “Habitually Addicted?”
Answer:   people who say they are.

Section 768.125 does not use the term “alcoholic” or specifically define “habitually addicted.” However, in Sabo v. Shamrock Communications, Inc.,3 the Court did provide a definition that may be utilized in defining the term “habitually addicted.”

The court in Sabo held that sufficient evidence of habitual addiction was presented … when the plaintiff established that the person that became intoxicated and injured the plaintiff: 1) consumed a case of beer during the day for at least two years prior to the accident; 2) each evening he would patronize various bars drinking hard liquor until he became intoxicated; 3) was by his own admission an alcoholic and habitually addicted to alcohol.

“See no evil and hear no evil” — Proving Knowledge by Circumstantial Evidence
[T]he plaintiff may prove that the alcohol was knowingly served to an habitually addicted person by circumstantial evidence.20 In Peoples Restaurant v. Sabo,21 the plaintiff was injured in an automobile accident caused by an intoxicated driver of another vehicle. In her personal injury action, she sued the owner of the bar which served the intoxicated driver a large amount of alcoholic beverages prior to the accident. The trial court granted summary judgment in favor of the defendant. The Fifth District Court of Appeal reversed that judgment finding that the record created material issues of fact as to whether the defendant knowingly served the drunk driver sufficient alcohol to render him intoxicated knowing that he was habitually addicted as required by Fla. Stat. § 768.125.22

The circumstantial evidence the Court found sufficient to defeat a motion for summary judgment included testimony by the intoxicated driver that: 1) at the time of the incident he was habitually addicted to alcohol and was an alcoholic; 2) for two years prior to the incident he consumed a case of beer a day and patronized bars at night consuming hard liquor until he became intoxicated; 3) he visited the bar owned by the defendant at least twice a week and got to know the bartenders well; 4) he was never refused service at the defendant’s bar despite the fact that he would become intoxicated every time he went there and display all of the obvious physical signs of intoxication; and 5) by the time he left the defendant’s bar on the night of the accident he was so intoxicated that he could not recall much about that evening or the accident.

Releasing a DUI Driver

We need the drunk driver to cooperate with us in our Dram Shop cases.
As a Dram Shop lawyer, I am never adverse to drunk drivers. For me, they are witnesses not defendants.
Best to ask the drunk driver some Dram Shop questions before releasing him. They get less cooperative after they are released.
Offering truthful information is a demonstration of remorse. If a drunk driver lies to throw a bar under the bus I will know. If they minimize or rationalize I will know.
If the drunk driver gives truthful answers to my Dram Shop questions then I could see why you would recommend that your client release him.
If he is not truthful or otherwise uncooperative, I could see how he could have a punitive damages problem.

Jeffrey A. Luhrsen, Founder and Senior Counsel
J.D., Stetson University 1993, cum laude
LL.M., Trial Advocacy, Temple University 2008

Contact The Liquor Law Center to discuss the merits of our involvement in your case.