Making war on DWI

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By Sherry Robinson

One Friday night in a busy restaurant, my husband watched a man sitting nearby drink a shot of tequila, a martini, a margarita and two beers.
“I hope I’m not driving near that guy,” he said.
It made me question, again, how reasonable it is to assign responsibility to servers. The waiter was covering most of the room. The customer wasn’t visibly drunk, but impairment – holding your liquor – varies from person to person. We all know somebody who’s tipsy after one glass of wine and somebody else whose capacity is legendary. The heaviest drinkers may be the hardest to spot.
In an uncertain economy, thin staffing is pretty common. Can a waiter juggling large trays of food and a lot of tables keep track of one customer? The law says they must and punishes them severely if that customer causes damage, but it doesn’t change the fact that people often drink when they socialize, and then they get into a car.
Who’s responsible? The customer? The server? The restaurant? The police?
In March the state Supreme Court made liquor establishments more responsible and customers less. It allows people to sue a liquor licensee over harm resulting from an over-served patron, and they may use circumstantial evidence to prove what was “reasonably apparent” to the server.
The slippery part is what’s “reasonably apparent.” To the court, if the drunk’s blood-alcohol content is still sky high hours after the incident, it should have been “reasonably apparent” to the server.
Carol Wight, of the New Mexico Restaurant Association, said the court has set “an impossible standard” to expect every restaurant manager and bar owner to know the blood-alcohol content of each customer. She predicted higher insurance rates and more lawsuits.
Sure enough, in April a California man sued the Hotel St. Francis in Santa Fe, where he had been drinking until the bar manager cut him off and walked him to his room. He later fell, suffering a spinal injury that left him a paraplegic. He blames bartenders for continuing to serve him after the manager cut him off.
During discussions of DWI bills in the last legislative sessions, Sen. John Arthur Smith, D-Deming, said, “We’ve made penalties so severe that small operations have given up their licenses. We may have aggravated a situation we never intended to aggravate. That was not the intent of the Legislature.”
Lawmakers in the last session grappled with the under-age drinker. The law has made servers responsible, and lots of us who would never be mistaken for a teenager, even in a dark room, find ourselves fishing out a driver’s license. This law has resulted in young wait staffers facing horrendous fines for serving minors. Two bills with bipartisan support attempted to reduce penalties and increase server training.
Neither bill survived the session, but they’ll probably come up again.
Linda Atkinson, executive director of the DWI Resource Center in Albuquerque, doesn’t talk about fairness or rights or who’s responsible. She focuses on what works and what doesn’t work. What works is law enforcement, prosecution, and taking cars away from offenders.
“The public needs to see checkpoints. They need to see officers out pulling drivers over,” she says.
Much about our DWI laws is unfair – to businesses, to servers, to responsible customers. We can holler about personal responsibility all we want, and we should, but when the irresponsible people get in their cars and hurt or kill someone, it doesn’t matter.
We have learned to take our shoes off as we pass through airport security – just because one extremist had explosives in his shoes. We do this in the name of the war on terror. Maybe we need to recast DWI in terms of war.
Sherry Robinson
NM News Service