Under Texas dram shop law, an alcohol provider can be sued when they continue serving drinks to an obviously intoxicated customer. But what exactly is obvious intoxication?

Answer: A customer is obviously intoxicated when there are ANY signs that indicate they are intoxicated.

The legal significance of obvious intoxication is that an alcohol provider breaks the law and can be sued if they serve an obviously intoxicated customer. So, any time someone is hurt in a drunk driving accident, the question that must be answered is whether the alcohol provider did or did not serve an obviously intoxicated customer.

To Serve or Not to Serve: That is the Question

Under the Texas Dram Shop Act of 1987, Texas lawmakers put the burden on servers to determine whether it's safe to serve a customer who orders a drink. Every time a customer orders a drink, a server must repeat the process of evaluating the customer and making a judgment call as to whether it's safe to serve the customer.

Per Texas law, if the server knows or should know that the customer is obviously intoxicated, then the server is legally required to cut that customer off. If instead they serve an obviously intoxicated customer, the server and the bar/restaurant/liquor store/etc. can be sued for any injuries or fatalities caused by the drunken customer.

The Deeper Meaning of Obvious Intoxication

As stated, obvious intoxication has a literal definition that just means "the customer was drunk enough that it was obvious." But there's also a deeper meaning.

The use of the term "obvious" in obvious intoxication means that a server must use ALL available information to determine if the customer is drunk. The question they must answer is whether it's obvious that the customer is drunk.

Think about that for a second. If the law had been written to say that a server is liable when they can hear that a customer is drunk, then a server would be legally required to stop serving a customer who is loud and boisterous due to alcohol, but the server would not have to cut someone off who is quiet as a church mouse yet is still dangerously drunk.

Similarly, if the law had been written to say that a server is liable when they see that a customer is drunk, then they'd be legally required to stop serving a customer who is swaying or having trouble keeping their balance, but the server would not have to cut someone off who looks sober yet is still dangerously drunk.

The takeaway here is that Texas lawmakers didn't want to create a standard by which alcohol providers could only be sued if they heard, saw, felt, or smelled that someone was drunk. Instead, they wanted to force servers to use all available information to determine if a customer should be cut off.

So, another way to think of obvious intoxication is to think of it as a legal standard that requires a server to evaluate all of the customer's conduct and all other clues when determining if it's safe for the customer to be served another drink.

Let's Compare Obvious Intoxication to Other Standards

To appreciate the deeper meaning of obvious intoxication, let's see how it compares to other standards.

Example: Bob is served alcohol at a bar in Arkansas, where the law requires servers to cut someone off when they are visibly intoxicated. Bob gets served six glasses of wine. He's about 200 pounds, and after six glasses of wine he isn't showing any visible signs of being drunk. Bob isn't slurring his speech or swaying, and he isn't belligerent. In fact, by all outward appearances, Bob is behaving normally. Since they use a visibly intoxicated standard in Arkansas, a server would be allowed to serve Bob an additional drink without breaking the law. The server could think to herself, "Bob LOOKS fine, so I am allowed to serve him another drink."

Yet, in reality, that server just served a drunk customer. In fact, a 200 lb. man who drank six glasses of wine in an hour will have a BAC of .11, which is well over the legal limit.

In other words, despite what the server thought, the customer was drunk, and it was unsafe for the server to serve him. Nevertheless, she didn't break the law, because the law only required her to see if he LOOKED drunk.

But in Texas, it works differently because we use the obvious intoxication standard.

Example: Joe goes to a bar in Texas. The server has served him 6 glasses of wine in the past hour, and Joe wants to order another. Joe looks fine by all outward appearances. However, the server counts the drinks, look's at her trusty TABC "Know Your Limit" Chart, and is able to tell that his BAC is .11, which means he's quite drunk. His intoxication is obvious EVEN THOUGH HE LOOKS FINE.

Example: Enrique goes to a bar in Texas. The server has served him 6 glasses of wine in the past hour, and Enrique wants to order another. Enrique looks fine by all outward appearances. However, Enrique's friend tells the server that Enrique is actually pretty drunk. His intoxication is obvious EVEN THOUGH HE LOOKS FINE.

You see what just happened there?

Under Arkansas law--where they use a visibly intoxicated standard--a bar tender got a drunk guy even drunker, putting everyone at risk, yet she didn't break the law. The law only required her to see if he looked drunk, and he didn't.

But under Texas law, both Joe and Enrique in the examples above were obviously intoxicated even though they looked fine.

The key takeaway is that obvious intoxication means more than just "a customer that is obviously drunk." Rather, it denotes a higher burden that must be met by Texas alcohol providers: the burden to use ALL available information to determine if a customer is drunk, not just rely on what their eyes tell them.

Common Signs of Obvious Intoxication

Even though Texas law requires servers to look for any and all evidence that a customer is drunk and should be cut off, usually the customer makes it pretty easy to spot when they are intoxicated by displaying obvious tell-tale signs.

Some of the signs that tell a bartender when a customer is drunk include:

• Slurred, mumbled, or incoherent speech
• Swaying while sitting, standing, or walking
• Staggering, stumbling, holding onto objects for balance
• Difficulty reaching for and picking up objects
• Inability to maintain eye contact
• Head on bar or asleep
• Falling off stools or chairs
• Bumping into objects
• Exaggerated hand or arm gestures
• Spilling food or drinks
• Falling down or losing balance
• Argumentative behavior
• Rapid drinking
• Obnoxious behavior
• Confrontational behavior
• Denial of impaired driving ability

Though this is not an exhaustive list of all the signs a bartender must watch for when serving alcohol to a customer, it does give a good idea of the kind of behavior that signals them to cut the customer off. If a server ignores these signs, then they have most certainly broken the law.

Our Texas Dram Shop Attorneys Are Here to Help

If you or a loved one has been hurt due to the over-service of alcohol, the Texas dram shop attorneys of Grossman Law Offices are here to help. Call us any time for a free consultation.