Staying out of trouble this Saint Patrick’s Day

Despite relaxing of COVID restrictions this Saint Patrick’s day will still be very different than most years but regardless many will still find a way to celebrate it. Whether you are going out to an event at a bar or simply staying home to host a smaller gathering of friends, please do it responsibly! Many of use continue to struggle with COVID restrictions but a criminal charge or a civil lawsuit will only make it worse. Obviously, most of think of drunk driving but this isn’t the only potential legal issue. When it comes to hosting a party, its important to remember that there is civil and criminal liability associated with it in Pennsylvania and New Jersey

Dram Shop Liability 

While many may have heard or read something about the legal concept known as Dram Shop liability, most believe it is reserved for restaurants, bars or beverage retailers.  In most cases, Dram Shop lawsuits occur after a serious car accident or some other incident where injuries are sustained.  A successful claim requires that the plaintiff (injured party) establish (1) a minor or visibly intoxicated adult was served alcohol by the defendant (the person who is being sued) in violation of the law; and (2) the defendant’s violation caused the plaintiff’s injuries or damages.  In additional to actual or compensatory damages (medical bills, pain, suffering, loss of consortium etc.), restaurants, bars or beverage retailers are subject to punitive damages (a financial award against the liable party intended to punish it for wrongdoing.)

Social Host Liability & Pennsylvania’s Criminal Code 

An extension of the Dram Shop Liability is Social Host Liability.  In Pennsylvania, adults who serve alcohol at private functions, like a Saint Patrick’s Party, are “social hosts.” If the host serves alcohol to a minor and the minor is injured or the minor injures someone else because of that intoxication, the social host may be liable to pay money damages to the injured person.

It is very important to understand Social Host Liability only applies to adults who serve alcohol to minors in Pennsylvania.  Adults are responsible for the consequences of their own drinking at these functions.  See Congini v. Porterville Valve Co., 470 A.2d 515 (Pa. 1983).  New Jersey, however, does notlimit lawsuits to social occasions involving minors and a social host is responsible for the actions of an adult who leaves an event intoxicated.  Dower v. Gamba, 647A.2d 1364 (N.J. Super. A.D. 1994) (cert denied 658 A.2d 299 (N.J. 1995).

A violation of this law clearly exposes one to civil liability and substantial financial damages but it is also a crime.  In Pennsylvania, a person who furnishes alcohol to a minor commits a third degree misdemeanor.   A third degree misdemeanor is punishable by up to one year in prison and a fine of up to $2,500.00.  The mandatory minimum fine is $1,000.00.  In addition to these penalties, a criminal record could negatively impact employment and other professional opportunities.  In New Jersey, this crime is a Disorderly Persons offense with a maximum penalty of 6 months in jail and $1,000.00 fine. 

General Impairment DUI

If a person is charged with General Impairment DUI, the prosecution does not need to prove a specific BAC level but only that the person was incapable of safely operating a motor vehicle on the road in Pennsylvania (Section 3802(a)(1))

To meet its burden of proof the prosecution may attempt to introduce both direct and circumstantial evidence which can include, but is not limited to, the individual’s actions and behaviors, including the manner of driving, the ability to pass a field sobriety test, the person’s demeanor, his or her physical appearance, and other physical signs of intoxication. It is important to keep in mind that the prosecution is not required to prove the person actually consumed alcohol but only that he was incapable of safe driving due to some impairment, which can include the consumption of alcohol and/or drugs (Section 3802(a)(2). In many DUI prosecutions a key piece of circumstantial evidence that the prosecution attempts to introduce is a vehicle accident involving personal injury or property damage. This is actually a separate DUI offense which subjects a person to more severe penalties than the basic impairment DUI under Section 3802(a). A person convicted under Section 3802(a) involving an accident is subject to a mandatory minimum license suspension (12 months) and 2 days in jail, whereas a General Impairment DUI, non-accident incident will not subject the person to a license suspension or any jail time.

Impairment at the Time of Accident

If a person is charged with an accident DUI under the general impairment statute, the prosecution must establish impairment at the time of the accident. Keep in mind that even if police come upon a person who is intoxicated after an accident, this is not proof beyond a reasonable that the person was driving while impaired at the time of the accident. The prosecution must establish a temporal connection between the accident and the person’s impairment. This can be difficult if the police did not actually observe the accident and the prosecution can’t call a witness to testify it. Frequently drunk drivers strike parked vehicles and owners call police based on the vehicle damage without actually seeing the accident which caused the damage.

Admitting to Alcohol Consumption and DUI

Even if a person admits to police that they had consumed alcohol earlier that day, it is insufficient evidence to demonstrate that the defendant was under the influence of alcohol or had imbibed a sufficient quantity of alcohol to render the person incapable of safe driving. Even if the prosecution can establish the defendant had an odor of alcohol, appeared confused, and failed his field sobriety test, they must still relate back the person’s condition at the time when they came in contact with police to the time the person was driving. This can be very difficult if not impossible! This is frequently a situation where police arrive after the crash and there are no witnesses to testify as to how the crash occurred or the person’s condition following the accident.

When police arrive after an accident with the drunk driver already out of the vehicle it is almost impossible for the prosecution to convict the person of more serious DUI offenses under Section 3802(a)(2), 3802(b), and 3802(c). All these subsections of the DUI statute subject the person to a license suspension even if it’s the person’s first time offense. Without an eye witness the prosecution will be unable to establish the person had a specific BAC level (over .08) within 2 hours of driving.

For more information on DUI in Pennsylvania I encourage you to read my book “Five Ways to Fight and Win Your Pennsylvania DUI Case”.

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