BELLY UP TO THE BAR…..AND SPREAD’EM!
On April 30, 2010, Liquor Control agents in conjunction with State police conducted a raid on a permit premises best described as a college bar. An undercover state trooper was sent to observe the activities, and he later notified troopers and agents who swept in. While on premises, the undercover trooper witnessed a female, age 20, entering the premises and noted another female on premises who he thought looked intoxicated. As the premises had a restaurant permit, the presence of the underage female was not a violation as minors are permitted in the dining area. Once she purchased a drink, however, it became a violation.
Thus far, the raid is no different than other raids conducted on a regular basis all across the state. Indeed, these particular premises had been raided three times previously with no violations. While serving a minor is certainly a violation, a single minor in a crowded college bar is nothing to write home about. What set this raid apart, however, was the turn the investigation took after the agents and troopers swept in.
Aside from the single minor, the trooper thought that another patron might be intoxicated. The liquor agents then began accosting patrons and administering field sobriety tests. Notably, all of the patrons accosted by the agent were of legal age. The agent’s description of one encounter with a 23-year-old man is as follows:
“Following the undercover investigation, Trooper Smith reported speaking with (the man) and observing that his eyes were extremely bloodshot and he spoke with a thick slurred speech. (The man) stated that he consumed three beers and two shots. (The man) was then directed to me (Special Agent Jones).
During my interview with (the man), he admitted to purchasing three to four draught beers and one hockey shot (a beverage containing vodka, black raspberry liqueur, blue Curacao, and Sprite). He stated that he was served by the young blonde bartender later identified as (bartender one).
While speaking with (the man), there was a strong odor of alcohol emanating from his breath, his gate (sic) was unsteady, and his speech was slurred. With the consent of (the man), I performed the Horizontal Gaze Nystagmus test in front of the premises where it was brightly lit. The HGN test resulted in a total of six (6) clues consisting of the following: (1) Lack of smooth pursuit-Both eyes (2 clues); (2) Distinct Nystagmus at maximum deviation- Both eyes (2 clues); (3) Onset of Nystagmus prior to 45 degrees- Both eyes (2 clues).
Following the administering of the standardized field sobriety test and based on the clues observed, it was determined that this patron was intoxicated with a BAC of at least .08. Based on the fact that this person was allowed into the barroom and also served alcoholic beverages on multiple occasions after displaying signs of intoxication, the premises is in violation of 30-86(b) “Sale to intoxicated person and 30-90 Intoxicated person in barroom. “
A similar report was made with the same testing for two other of age patrons. The permittee was charged with one count of sale to a minor and three counts of sales to intoxicated patrons. While a sale to a minor charge typically carries a penalty of three days suspension and a $750 fine, the Commission demanded 14 days suspension and a $4,500 fine.
So what is wrong with this picture? Aside from the patent offensiveness of enforcement agents entering a restaurant and field testing patrons, a number of basic issues arise. First, determining whether a person is at a .08 BAC is difficult. Toxicologists generally agree that most people don’t show visible signs of intoxication until they get into a .13 to a .16 range. The field test is designed to create “stressors" on the subject, essentially having them perform different tasks to gauge their performance. If the subject is not moving or talking, they are not displaying signs of intoxication. By performing several tasks, an officer can make an overall determination of whether they have probable cause to request a blood or breath test. Bartenders, however, cannot request patrons to literally jump through hoops to purchase drinks. They must rely on arms length observations. As such, the agent here was creating signs which a bartender could not. Secondly, the standard field test requires a number of separate tests, not just the eye Nystagmus. The eye Nystagmus test alone is NOT considered sufficient to establish probably cause for an intoxication test. Thirdly, the agent was using the wrong legal standard. Unlike DUI charges, which are established solely by carefully administered blood alcohol tests, the standard for civil intoxication under the Connecticut Liquor Act is visible intoxication. Established Connecticut case law holds that simply establishing a BAC level does not create liability under the Dram Shop Act. Coble vs. Malone y, 34 Conn. App. 655, 664. Thus, whether the patron was at a .08 is irrelevant to the civil determination of service to an intoxicated person. Finally, the issue is not what the patron looked like after service, but at the time of service. It is quite common for a patron to order a drink in a visibly sober state, and then become intoxicated after consumption and the alcohol enters the blood stream. It can take as long as a half hour after consumption for the full effect of a drink to be felt. The agent’s conclusion that the permittee allowed intoxicated patrons to enter the premises is simply a conclusion, and an ill founded one at that.
The ultimate effect of this type of investigation is devastating to any on premise establishment. Forget about stopping service, taking car keys, or providing patrons with a ride home. As soon as any patron shows any subtle sign of intoxication, even signs that can’t be seen without testing, the penalty is thousands of dollars and days of suspension. Proper compliance would require that all patrons be weighed at the door, tested, and a drink limit assigned to assure that the BAC never reaches .08. Obviously, this is a standard which cannot be complied with. More to come.