In my torts class, I teach “Dram Shop” cases where bars and restaurants are subject to civil liability for “overserving” customers. These lawsuits are generally brought by third parties who are injured in car accidents by drunk drivers. In that sense, a Texas case has all of the classic elements of a Dram Shop case: Dylan Molina drank eight high-alcohol drinks in roughly three hours before leaving and getting into a wreck that killed a police detective and seriously injured his family. The difference is that the bartender, Cala Richardson, 26, is being criminally prosecuted for overserving Molina.
Molina went to Fuzzy’s Taco Shop in Lake Worth on Nov. 21, 2021. Richardson served Molina eight drinks containing a double serving of vodka, starting around 10:30 that morning. There was less than a half an hour between drinks., though Richardson said that she was not aware that Molina drank all of the drinks himself.
Yet, the police insist that Richardson should have known because “After his 7th drink was served at approximately 1254 hours, Molina begins to exhibit common signs of intoxication that included approaching individuals at the bar with a loose, belligerent body posture and hugging and/or touching a customer at the bar that Molina did not appear to be acquainted with.”
Molina was served his last drink at 1:12 p.m. and started driving at around 1:30 p.m. Three minutes later, Molina had crashed his Jeep into the Cervantes’ car.
Notably, the observational evidence cited in the criminal complaint occurred after the seventh drink. Only one drink was served to Molina after that point.
It is clear that Molina should not have been served the final drink. Indeed, he should not have been served this high number of drinks in such a short period. Bartenders often complain that the Dram Shop laws expect them to monitor individual customers in what are often busy and crowded bars.
If this were a conventional torts case, there would be little controversy. The question is whether these cases should be criminalized and whether the death of a detective was the impetus in making this a criminal matter. Richardson is charged with one misdemeanor count of Sale to Certain Persons. This is a criminal negligence provision under Section 101.63: “A person commits an offense if the person with criminal negligence sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person.”
The police acknowledged that Richardson might not have known that Molina was drunk but that her training for a license to serve alcohol, includes “recognizing signs of intoxication and the prohibiting of serving intoxicated individuals.” Thus, she should have had “reasonable knowledge of (6) to (8) double alcoholic drinks over a (2)hr (50)min timespan, with only (16)-(29) minutes in between each alcoholic beverage would precipitate the intoxication of an individual.”
One added factor is that Richardson not only overserved Molina but her server’s license was reportedly expired at the time of the incident. Yet, the underlying criminal negligence crime in this case does not refer to serving without an active license as an element for this crime. It could be an aggravating factor in sentencing.
The question is whether this should remain a civil matter or whether it is justified to potentially jail Richardson for up to 1 year. I generally disfavor the criminal negligence charges because they blur the lines between civil and criminal conduct. Yet, the tragic loss of this officer (and the terrible injuries caused to his family) understandably militate in favor of more serious action. The question is where the line is drawn in the enforcement of the criminal negligence standard. It is admittedly a tough call in cases like this one with such a terrible loss and injuries.
What do you think?
I tended bar in my young days. I think the bartender has been put in an impossible position. If the police are concerned about people driving drunk, they should monitor bars themselves. This woman does not get paid enough to do her job and the job of law enforcement too. And at that time of the morning it is questionable whether there was a bouncer or someone to back her up. Otherwise she has to face an angry drunk alone? Is that the solution?
Restaurants, bars and pubs were some of the hardest hit businesses from the pandemic. Many of those that are still in business are in heavy debt and running on skeleton staffs.
These mostly working-poor employees weren’t getting rich before Covid, now we burden them with more unpaid duties.
The last thing they need is to be “deputized” (without additional pay) to act as law enforcement and safety inspector. Next time you ask why the prices are so why, it’s these types of policies.
Getting someone drunk is not the issue. Driving is the issue. A person should be able to go into a bar and get as drunk as they I want – but they absolutely not drive afterwards (nor probably not walk either.) The bartenders only negligence was in not foreseing that this person would be driving. How was she to know that he did not have a safe way to get home?
Bar owners could require a “designated driver” for all customers, but it might put a damper on date night! Ask out a date and bring a third person with you to drive home.
I once had a job performing high rise work on the side of tall buildings and OSHA requires at least “2” people operate a swing-stage scaffold (moving platform that rides up and down buildings). This dangerous occupation is still statistically safer than drunk driving.
I think the problem there is if a customer says “It’s OK, we took an UBER.” How can you prove they didn’t?
If someone is as drunk as this person, have the bouncer follow them outside. If they try to get into the driver’s side of a car, discourage them from driving, offer to call Uber or a taxi, or a friend. If you can’t stop them, call the police. I’m aware of a case in which a woman went into a bar about noon to drown her sorrows. She drank all afternoon and by early evening was thoroughly toasted. She could barely stand, and when she went around bothering people, the bartender and bouncer basically dragged her outside, put her in her car, and even started it. She sat there awhile, and then put the car in gear and drove away. A short distance later, she crossed the center line, struck an oncoming car and killed a couple of people. Of course, there’s tort liability for this, but considering the danger she posed to the public, there should be some stronger deterrent besides a money judgment. The bartender, wait staff and bouncer should know when someone isn’t fit to drive, or even safely walk around outside. Women who leave bars on foot in a state of intoxication are frequently the victims of robbery and/or sexual assault. Responsibility for protecting the public shouldn’t even necessarily depend on how much they were served, either. Someone high on drugs could enter a bar already in a state of obvious intoxication. They shouldn’t even be served, and if they are obviously in a state of vulnerability, steps should be taken to prevent them from harming themselves or others.
The bottom line of the equation, IMHO, is that when you, as an employee of a bar, know or have reason to know that a customer is seriously impaired and cannot safely drive or even take care of themselves on foot, there should be a duty to take steps to prevent foreseeable tragedies. If they walk out the door in an impaired state and something bad happens, the sober people that could have prevented this should be held accountable.
Coming to a bar/restaurant that serves alcohol near you: You have to take a breathalyzer to exit the establishment.
Or, just install them in all vehicles for it to start.
How does the bartender know the drunk will leave and drive a car?
Based on the incident and the amount he allegedly drank, he is an alcoholic. Does anyone think this was the first time he had a drunk driving incident? What happened in the court system with the previous incidents?
Couldn’t this very easily create a slippery-slope for employers, parents, homeowners and government regulators – possibly opening them up to criminal charges and lawsuits?
For example: even if an employer issues hard hats, safety glasses, cut-resistant gloves, boots, etc – what if the employee doesn’t wear the protective gear? Will the employer have to monitor each employee every minute of every day? What about a homeowner hiring someone to mow their yard or landscaping? Is the homeowner “deputized” to play nanny-state over contractors? What if your child isn’t wearing a bike helmet?
Just this week it appears the workers cleaning up the Ohio train derailment weren’t equipped with independent oxygen tanks and respirators? Police officers working in the polluted air appeared to be equipped with Covid masks? Should OSHA closely regulate and protect fire fighters and first responders who work in high risk environments? Could a federal OSHA official be criminally charged or sued?
If we essentially “ deputize” low-wage bartenders adding the risks of criminal conviction and lawsuits, why wouldn’t the same standard apply to other industries? We are asking a third-party to do the job of law enforcement and safety regulator.
This is essentially a “drunken Indian” provision right? But, as misdemeanor, I’m not certain it’s unreasonable. I suppose re the drunkard one could argue that the first few drinks are health or medicinal tincture, but beyond that?
Even if the bartender knowingly serves, even if s/he fails to provide a defensive act, if s/he fails to provide that ounce of prevention, is s/he truly culpable? Or is this simply a case of blame shifting? Made publicly palpable through lessened charge? Is there a difference between blameworthy and “culpable”? Even if the response is “no” – which I am not at all certain is accurate – at what point does failure to prevent become culpability? Did Richardson, in fact, encourage Molina to drive? Is she truly complicit, in the crime? And even if you conclude that she is, how does one then proportion blame? Perhaps, ninety percent to the driver? ten percent to the tender? Do you suppose sentencing will accurately reflect this? For certainly Richardson did not, herself, harm anyone. Or encourage others to do so.
In choosing to proffer charges do we then assume, thus pretend, perhaps maliciously, that she did?
Even this “after the seventh drink” observational evidence – this admission, this self incrimination – is this not just guilt-ridden self-flagellation, as emotional personal admonishment? What exactly is Richardson guilty of anyway? Serving one drink to a drunkard? Is that the nature of her crime?
I can certainly understand the bloodlust here, the cry for justice, and the necessary full breadth of that justice, but I’m thinking the prosecutor is possibly on shaky grounds. Which is not a place I’d want to be. I think I might rethink this.
One could reasonably say there is today no justice in “criminal justice.” But criminal justice should not itself victimize. Or ultimately it will fail.
Apparently about 70% of Americans think the nation is going in the wrong direction (Republicans, Democrats and Independents). Maybe two big reasons are a double-standard of Justice and NOT using actual statistics to make public policy.
To put this in perspective, every year drunk driving related deaths equal about three 9/11 tragedies – each and every year (60 times greater threat over 20 years). This is triple the threat to everyday Americans but we spend less on this much greater threat.
Why haven’t we tripled the resources to prevent this much greater danger?
Today in 2023, local police, Fusion Centers (usually operated by state police but federally funded) and federal security agencies monitor 24/7 mostly innocent Americans blacklisted after 9/11. These officials know that they are harassing (daily) innocent people with no connection to terrorism whatsoever. They likely do it to scoop up federal tax dollars. The more innocent people they blacklist, the more money they make. It destroys the innocent Americans in the process and is still a war crime. This doesn’t include the intangible costs like totally gutting our 4th Amendment and Bill of Rights.
For a threat 3 times more deadly than 9/11 in a single year (60 times more deadly over 20 years) – why not put a police officer in every bar? Why not zone more bars and restaurants in residential neighborhoods with sidewalks like Europe? Why not require auto manufacturers to build alcohol testers into the ignition switches of cars? Why not perfect self-driving car technology?
Using real evidence and statistics to guide government policy, just might get the USA back on track wasting fewer of our tax dollars! Most Americans think the nation is going in the wrong direction, maybe some common sense would (using actual facts) would improve that?
A few thoughts about this and similar cases:
1 I don’t think the penalties should be any more severe based upon the status of the individual who is killed by any negligent action;
2. If the bartender was ringing the sales into the bar’s register system correctly, there should have been a display of the times that each was served, assuming the bar had a detailed point of sale system;
3 I have had experience instructing bartenders on the relevant laws regarding dispensing alcoholic beverages to intoxicated individuals, and am aware of point of sale systems that will display the times that beverages were dispensed. I also have a childhood friend whose father was injured in a wreck caused by a drunk driver who lost the use of one side of his body from the accident and was also blinded in one eye.
With all these factors as personal baggage to influence my decision, I believe the bartender was not fully trained or was negligent in this case. The defense that was presented seems to admit to being careless or negligent (“I had a busy bar to keep track of; how can I follow everybody’s consumption?”). My question is: How was the bartender keeping tab of what the customers ordered, while also saying she could not follow their consumption?
I think you’re blame-shifting. The bartender is no more responsible for the vehicular manslaughter than s/he is, or would be, for a bar fight, or assault. Completely ridiculous, do we, example, charge the drug dealer with the criminal acts of clientele? And if not, why not?
Democrat DA releasing hardened criminals to repeat their crimes?
This is a fair comparison. Allowing a known danger to go free into society. The Legal, standard is will defined. Immunity to the government actors, loss of treasure and freedom for the non govt actor.
What is penalty for the actual criminal? Is he up on murder charges? Premeditated taking of a life. Going upstream to allow the govt another scalp rubs me the wrong way. Buy I haven’t sorted out all the factors yet.
Having enforced our sales to intoxicated persons law in my home state, I agree this is a difficult call. Due to the high cost of drinks in many clubs and restaurants, many young patrons would consume large quantities of alcohol (usually beer) at a friend’s house right before going to the club where they would then only purchase one drink. Were they drunk when they arrived at the club ? In most all cases yes. But if their demeanor was calm when they arrived at the club, it would be very difficult to detect in a noisy environment. I agree with MRR’s comment that the early time of day when Molina’s drinking began (10:30am) is much more problematic for Ms. Richardson and will be difficult for her to explain away. Thank you, Jonathan, for an excellent article.
I tend to think even a good, observant bartender is going to baseline a customer from when they 1st enter, so if they are gregarious when they enter its just assumed that is how they are naturally.
Just exactly why would time of day matter?
Time of day is being used as a proxy for how busy the bartender was.
The Dram Shop Rule is yet another example of attorneys creating a path, out of whole cloth, that ensures another group of defendants to what is already a litigious society.
Now we’re going to sue or even arrest some college student earning tuition money or parent working a second job for the legal act of serving an alcoholic beverage to an adult? Should customers be required to take a blood alcohol test before each drink is served?
Why not create a rule to sue the liquor manufacturer, or the company who makes the chairs where the patron sat comfortably while drinking to an excess?
Where does this end?
It ends before the entity that receives a mandatory cut of every sale become liable, that’s for sure.
There were >25,000 DUI crashes in TX in 2021. Clearly threatening bartenders will curtail that.
Frankly shocked (not shocked) that the bar itself was not fined.
Maybe TX can educate its bartenders out of its $1.2B in booze tax revenue?
IMO, if you are taxing booze and licensing its sale and distribution – your head should be on the block.
Neil, a complete solution to all such problems is impossible. We are focusing on one driver and one bartender, but you bring up the real point, 25,000 DUI crashes in Texas. The solution to those crashes isn’t found in the decision of this case of 25,000. DUI crashes will still occur.
If DUI is a problem, there are solutions. Drunk drivers violate the law repetitively. Reducing the 25,000 reduces the likelihood of major injuries.
Here is one method of reducing DUI drivers. Station police around bars at the closing time late at night, arresting all the drunk drivers leaving the bar. The worst offenders will repeat their offenses and end up in jail. That reduces the danger.
so can we throw Democrat political leaders in JAIL…for observing all the CRIMINALS committing crimes? If an illegal commits a crime…shouldn’t Biden and his government BE JAILED? Lori Lightfoot should be Jailed for EVERY murder in Chicago!
Why is it just bars?
Responding to Guyventner:
Sort of like when the George W. Bush FBI/DOJ simply walked away from torture victims instead of arresting interrogators committing war crimes. Then the interrogators continued committing war crimes in violation of Ronald Reagan’s Treaty.
The FBI Directors and AGs acted as both “accessory before and after the fact”. About 200 FBI agents walked off the torture sites. We have over 200 witnesses for an indictment.
The FBI publicly admitted that it wanted to arrest the war criminals but was prevented from doing so.
Today we now know the vast majority of torture victims had no connection to terrorism whatsoever and that Bush officials knew that at the time.
So you want to pursue those war crimes?
Bartenders should have their paychecks doubled or tripled if they are being deputized into policing customers. Why would anyone become a bartender with this potential risk? What if the customer shows no signs of intoxication but then gets in an accident?
What about liquor store employees? How can you write the wording of a law only for only bartenders, but remove all culpability to the liquor stores?
Although not a fan of the technology for most circumstances “Self-Driving Car” technology may someday help save lives, simply switch to self-driving mode. This technology could also help the disabled and elderly keep their driver’s licenses longer, keeping the roadways safer. There is also existing technology that courts use, where the driver has to blow into a tube testing for too much alcohol, in order to start a car.
Localities could also build more sidewalks and allow more commercial zoning in residential areas. In my neighborhood, there are lots of nearby restaurants within walking distance, but no safe way to walk there instead of driving. Maybe Americans could learn a few things from European nations on walkable neighborhoods?
I saw about a year ago where someone from MADD stated they were in favor of extending the drunk driving laws to selfdriving vehicles. I think this is very misguided and exposes them as not so muck an anti drive driving groups as they are modern day temperance advocates.
Despite my lousy typing I assure you I am not under the influence. Cruddy eyes, small keyboard.
If it were anyone other than a police officer, there would likely be no criminal charges. Legislature should either carve out a special exception or make the server criminally liable for all such incidents. Equal justice and all that jazz
Seems like a slippery slope to be accountable for someone else’s responsibility.
Well an Indiana case years ago established the civil liability of the bartender “over serving” a bar patron who was then involved in striking someone and killing them. I think the driver and bartender are criminally liable as well as civilly. The degree of drinking allowed here and the consequences make it criminal.
Just my thoughts having been in Public Safety for over 30 years. At that time of the day, most bars are pretty empty. It is much easier for a Bartender to interact with clients and thus understand their level of intoxication. It is absurd to think that a Bartender and even bar patrons do not recognize the signs of intoxication. At the point of allowing an intoxicated person to leave an establishment, with a “reasonable” expectation that person will drive a vehicle should be the point of criminality in my humble opinion.
and Democrat DA releasing hardened criminals to repeat their crimes? Or Democrats legalizing drugs which lead to thousands crimes and deaths?
Explain how that is different?
If what you are saying is true then Law Enforcement should be charged since they failed to monitor these establishments and could have prevented this incident. The point is where do we draw the line in accessing blame. I would vote not guilty and recommend civil charges against the local agency for false arrest.