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 bartended for years when I was in college and part time afterwards. Dram shop laws are a joke, there are people out there who could down a 5th of vodka and you could not tell they were drunk at all, others would get loopy after 2 beers. How does this differ from suing gun manufacturers for murder ?
If she was black and murdered six white toddlers she’d be on house arrest.
Maybe Ms. Richardson needs to change the game altogether? At no cost to her, she could simultaneously pursue a “constitutional” lawsuit to overturn these unconstitutional laws.
For free, she could ask for an “ACLU” attorney or “Institute for Justice” attorney to literally overturn these unconstitutional laws and practices – which “deputizes” low wage bartenders to be cops and safety inspectors.
It may not win her current case, but at minimum may reduce her penalties since the law is unconstitutional on it’s face. It may also help her obtain a full pardon from her governor, since the law is deeply flawed.
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.
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Actually, I read three vodka-Red Bull doubles but regardless his BAC is what it was. What’s important is that this charge is purely tribal. Make the victim a street cleaner from Peoria and the cops are happy with just one head. The perps blood alcohol level was 0.144 (belying the 8 drink theory), which is over the legal limit of 0.08. That’s bad but less than the limit I encountered when first practicing law (.15). In fact, he was impaired but his server would play Hell trying to discern .08 from .15 especially if it was a chronic drinker who might have maintained an alcohol level in his system with no discernable effects. Let this woman go. It’s a civil matter and ought to be kept as one.
I think there is good money in dram laws. The policy has already spoken. They like the revenue. More. No matter who is working.there is always going to be someone judgement proof to work! To toss under the bus. She should have not been doing it no matter she is judgement proof. The issue is her boss judgment proof? Depends on who who is….And who is for their nose under the regulators tent.
Well I’m confused because Texas does NOT actually license servers or bartenders. They have a voluntary Seller/Server Training Program upon the completion of which the server receives a certificate of completion that’s good for two years (colloquially “TABC Certification”). The program is voluntary and businesses holding liquor licenses are incentivized to participate with a “safe harbor” protection against license termination for those businesses who do participate. You cannot charge a server or bartender in Texas with serving with an expired TABC Certification because the program is voluntary. That being said, the certification program goes into detail about the laws impacting alcoholic beverage service and includes training for responsible service such as how to check I.D.’s and handle intoxicated customers, etc. It’s very similar to the “Safe Serve” programs used in most states. There is no criminal recourse for the police in this case.
In 2017 8 people were killed at a party held at a residential home in Plano, TX and the killer had been drinking at a bar within walking distance of the home. This bartender was also charged with the same crime as the killers blood alcohol was measured at 0.33 during his autopsy as he was killed by police at the scene. A grand jury later failed to indict her for the crime so charges were dropped.
https://www.ajc.com/news/national/charges-fizzle-against-bartender-accused-over-serving-mass-shooter-who-killed/fS9FUI9ZimmVY6duV72vfO/
These “nanny” laws put all the responsibility on the bartenders, servers or bar owners, and take away responsibility from the *drinker*.
I remember when they first talked about passing laws, practically wanting bartenders to give “field sobriety tests” to bar patrons before serving them.
It was political then – bartenders only care about selling drinks and making tips off drunks.
Make drunks responsible for themselves – but the punishment must be the same for the wealthy/celebrities/politicians, etc as it is for the poor sod who can’t afford to take a taxi cab across town.
First DUI – you spend the night in the drunk tank and your license is revoked for 12-months.
Second DUI – you spend 30-days in jail and your license is revoked for 5-years.
And yes, the license suspension follows you to every state.
But it’s not *really* about preventing or stopping drunk driving, is it…
I agree with your graduated consequences for DUI, but instead of simply revoking the license the vehicle used should also be impounded for the same period of time.
Anyone who has spent any time at all in traffic court will tell you that driving without a license, or with a suspended license, is a very, very common charge. The people who tend to violate DUI laws tend to be the same people who won’t be impeded by the absence of a simply piece of paper. Get ’em off the streets by taking the CAR, not the license.
I think, and have always thought that if legislators had the cojones to deprive a citizen of the privilege of operating a motor vehicle for life after the first conviction for driving under the influence we’d have an end to the wide range of personal tragedies, loss and costs to society in general, which are the consequences of the failure to do so. That’s my take on it and personally I don’t give a damn what your rebuttal might be.
No rebuttal. Perhaps a long suspension for the first one would be in order then deprivation “for life.” But what about moving to another state? If American states had laws as strict driving laws, including drink driving, as most European countries, we’d be much better off.
And boards make too much revenue for the state….noting will change. It’s like taxing cigarrettes…a big pool of money that doesn’t go to cigarette harms..but folks general revenue….they take advantage of addictions….Bc they all make out good…..don’t have to raise taxes….have a coopted addicted payer…..just like casinos…..do they can them..no they take your money !!!! They ain’t good hearted care about you….they are greed. And they need to suffer the wrath of their greed….not the kids and judgement proof bar tending to their greed! Where is the vicarious liability for the inherently dangero us? In other people’s pockets. For sure! They get dram laws…serioulsly? Let it be that then don’t ask for war. With the peons.
Jaelyn, the state I live in now collects more tax revenue from pot than alcohol. Pots been legal for about 5 years.
This is and act of the “Brotherhood.”
The judge must be impeached and convicted for abuse of power, conspiracy to favor, defrauding the law, denial of constitutional rights et al.
Laws that transfer responsibility from the perpetrator to unrelated third parties are irrational, illegal and unconstitutional.
Guns don’t kill people, shooters with guns kill people.
Drinks don’t kill people, drivers with drinks kill people.
The retail establishment, the bartender, friends, relatives and acquaintances of the perpetrator/drinker/driver did not kill the victims or cause the collision, the perpetrator/drinker/driver did.
Every person is responsible for his own acts, and every person has no basis for blaming others not directly involved and on the periphery.
Blame the mothers of all the parties involved; if the mothers had not borne the vodka distillers, the glass makers, the vehicle manufacturers, the drivers, the establishment proprietors, the construction workers who built the establishment, the providers of electricity and water to the establishment, the doctors that perpetuated the functional health of all the parties, etc., etc., etc., the victims would not be injured and dead.
Where in the definition of law is the phrase “absolutely preposterously ridiculous”, because American “law” is becoming “absolutely preposterously ridiculous!”
J6 ..type perpostorious? Or Chinese balloon perposteroiuos? Vs agreed upon that a most Americans don’t deem perposterous? Unfortunately our courts now have to give “rational’ to what we all figured shortly yesterday as perpostorious. It’s everyman for himself now. Because the rule of law died….when trust in situations was slammed by gimmicks like men giving birth.
As someone commented earlier, what about the customers that drink before going to the bar (since it’s cheaper) then the bartender does everything right serving 1 or 2 drinks. The bartender could still be in legal trouble even if they were responsible.
Why would anyone want a job with that much risk? Not only would you lose your bartender job (income) but may lose your house, personal assets and go to jail.
Ashcroft: You bring up a worthwhile point. Numerous states have struggled with statutory language that ascertains the parameters of a bartender’s legal duty to consider whether to serve another drink. Especially in younger servers who might not have the experiential capacity to gauge pre-intoxication. I think many states have a negligence standard, i.e., the bar must know or have reason to know that the customer is intoxicated or will become intoxicated with another drink (the old “foreseeability” test), as opposed to strict liability. I was counsel in one such case (we settled, so there was no “opinion” for future guidance). In retrospect, perhaps there needs to be more emphasis on “employee guidelines” requiring servers to consult supervisors or bartenders for a “second opinion” before serving another drink in an equivocal situation.
(Indeed, JT brings up this point: “Bartenders often complain that the Dram Shop laws expect them to monitor individual customers in what are often busy and crowded bars.” I have no opinion regarding criminal v. civil adjudication.)
As we’ve seen, goes for being a police officer, too.
One question I have is; did Richardson personally serve Molina the drinks or did a waitress (server) order the drinks from the bar and serv them to Molina? That asked, as a former bartender I maintain that a bartender should be aware that a certain type of drink is being poured multiple times in a short span of time. Richardson was “over pouring”, whether this was at the request of the patron (ordering doubles) or her inclination because that is how she usually poured or she knew him as a regular, or she wanted to increase her tip, I have no idea. Any bartender who over pours to this degree is not doing anyone any favors, her/himself, the owner, or the customer. In Massachusetts it has been known for a long time that a bartender and the establishment could be sued civilly for excessively serving anyone who then is involved in an accident with injury, but I have not heard of a criminal complaint. Richardson certainly showed poor judgement.
There may be a private solution to this problem that restaurant owners may consider and a great selling point to attract customers:
If my math is somewhat accurate it’s look like a restaurant owner could have a dedicated vehicle (passenger van) with a dedicated driver to offer a low cost local pickup and drop-off service (on weekends only) for about $32 per hour*. Hotels already have a similar system for their customers.
*That’s assuming paying a driver $20 per house, assuming a $500 monthly vehicle payment and $200 additional monthly insurance covering 64 hours per month (Friday and Saturday night shifts 16 hours per week). Fuel costs would be additional.
This is not offering free service to bar customers but a modest fee (maybe $20 – $30 per customer). Of course this only factors in weekends, not weekday drinkers like the guy mentioned above. Simply offering such a service may make the roads safer.
A local bar in the small town where I live offers rides home. GREAT idea that more bars/clubs should use.
A person should not be criminally responsible for another’s actions. However, as a condition of obtaining a license to serve alcohol, requiring a customer to pass an alcohol meter test might be desirable.
The Pro-Choice ethical religion denies human dignity and agency, and shares/shifts responsibility with empathetic appeal.
Nearly 30 years ago my brother, one the finest men ever to live, was run over by a drunk driver around 6pm after the man had been drinking all afternoon at a bar he visited almost every day — each day before driving home heavily intoxicated. It was a matter of time. He ran over my brother in his truck, and then was backed over by the man who was trying to dislodge the truck from his dying body. Drunk driving is a brutal crime. It was three years before police were able to find him and build the highly compelling case against him. He was convicted, received two eight year sentences to run concurrently, served about three.
As a young person I drove while intoxicated numerous times, the last time in the 1970s & 80s. Then, there wasn’t the compelling stigma or hash laws to stop drunk driving.
But it is not the crime of a bartender. It is the crime of a driver.
I would favor breathalyzers in bars and encouragement for all patrons test themselves before leaving if they are driving. Uber isn’t that expensive.
But let’s not start pushing for laws against the wrong people.