Wednesday, November 14, 2012

Laws to Crack Down on Serving Intoxicated People in Bars Largely Ignored

By Celia Vimont | November 13, 2012 | 1 Comment | Filed in Alcohol &Government

Laws prohibiting bars and restaurants from serving intoxicated people can be an effective way to reduce alcohol-related motor vehicle crashes and violence, but the provisions in most states are poorly drafted and rarely enforced, according to two experts on alcohol policy.

James Mosher, JD, and Elizabeth Dahl, JD, of Alcohol Policy Consultations, say the enforcement of well-designed service of intoxicated persons (SIP) laws would provide significant public health and safety benefits. Mosher spoke at the recent American Public Health Association annual meeting.

Only Florida and Nevada do not have SIP laws, and Wyoming’s law applies only to drive-through sales, according to Dahl. Other states have some form of SIP law, although the specific provisions vary widely.

“Law enforcement largely ignores these laws,” Mosher notes. “One reason for this is they are usually so poorly drafted that there’s little likelihood of conviction.” A 2007 report by the National Highway Traffic Safety Administration concluded that states have limited resources to enforce the laws, and the provisions of the laws tend to make collection of proof overly burdensome. The report also found that cultural norms that tolerate excessive drinking or that support the idea that bars are appropriate places for patrons to become intoxicated present a challenge for effective SIP enforcement.

New Mexico is one of the few states with an effective SIP law, Dahl says. In that state, if a patron is stopped after leaving a bar or restaurant with a blood alcohol content (BAC) of .14 or higher, a rebuttable presumption is established that the patron was intoxicated when served at the establishment. The bar or restaurant can rebut the presumption with evidence that the server could not reasonably know about the patron’s intoxicated state. After three violations in one year, the establishment can lose its license. According to Dahl, New Mexico implemented a targeted program to enforce its SIP law and combined it with DUI checkpoints and dedicated DUI enforcement. As a result, the state experienced a substantial reduction in alcohol-related motor vehicle crashes.

This contrasts sharply with the laws in other states. “In many states, you can’t use the BAC of a patron to infer they became intoxicated in the bar—you need to prove that through direct observation of a witness, which makes it harder to prove,” Mosher says. “You have to send undercover officers into bars and have them sit and watch to see if a violation occurs.”

SIP laws that do not require actual knowledge of intoxication are easier to enforce, Mosher says. “Some states use a ‘reasonable person’ standard – would a reasonable person in like circumstances know that the patron was intoxicated? This constitutes the legal definition of negligence and is an appropriate approach for drafting SIP laws.” According to Mosher, SIP laws are more likely to reduce patron intoxication if the penalties focus on suspending and revoking the licenses of repeat offenders rather than relying on criminal penalties. Administrative sanctions are typically easier than criminal sanctions to impose.

The authors suggest that an effective way to reduce Driving Under the Influence (DUI) incidents is to focus on the relatively small percentage of drinking establishments that repeatedly serve intoxicated patrons. Law enforcement often knows which ones these are because of the repeated calls for service that typically occur. After every DUI arrest or crash, the offender should be asked where they were drinking as a routine part of the investigation. The data can be compiled to identify potential problem establishments. Law enforcement can meet with the owner and manager, alert them to the problem, and suggest Responsible Beverage Service programs that focus both on management policies and staff training. If problems persist, a targeted law enforcement effort can be initiated. This approach can greatly reduce the costs of SIP law enforcement and focus limited resources on the establishments most likely to be SIP law violators.

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