DUI:  Wrongful Deaths; Wrongful Policy

by Neil S. Siskind, Esq.       

        On July 1, 2005, the Flynn family was on their way home from a relative’s wedding. The family had hired a limo so they could dance and party at the event with no worries. As they drove home in back of the limousine on the Parkway after the event they were hit head on by Martin Heidgen, an insurance salesman, who was driving the wrong way down the highway and was over 3x the legal alcohol limit. The crash killed the driver, Stanley Rabinowitz, and the Flynn’s 7 year old daughter, Katie, and severally hurt the rest of the passengers. Heidgen was convicted of second degree murder and received a sentence of 18 years to life. 

               Legislators, prosecutors, parents and courts continue to struggle with the proper way to prosecute and punish deadly DUI accidents. On the one hand, some, like the District Attorney in the Flynn case, believe that a killing while driving under the influence is straight up murder. The premise of this philosophy is that a person who gets into their car drunk is acting with a depraved indifference for human life. If this leads to death- then they pay the price. Others feel that although it is a killing for which punishment is required, it is not the same level of murder as that committed by one who sets out with intent to kill. A theory on the latter philosophy is that people see themselves in DUI drivers. Many people in our society have a drink or two and get behind the wheel. After a wedding, a dinner at a friend’s home or a business lunch, may people have driven when perhaps they should not have. Those who object to a murder charge for a deadly DUI crash recognize that in our society, driving after drinking is a common reality. Treating an accidental killing from this scenario as an intentional murder would fail to accurately distinguish people in our society from one another. Punishments, they suggest, should take intent and aforethought into consideration. As with many issues in society, politics, law and life, both sides of the issue have merit. 

               But what about our social policy? Everyday we, as citizens, enter into social contracts with one another. We act in certain ways that have become acceptable in our communities and are legal under the law. The laws passed by our legislatures seek to reflect our morals and expectations. In some cases, our laws dictate, or attempt to dictate our morality and behaviors. It may be time to question and give a true examination of the socially acceptable (and legal) behavior of selling open liquor in public establishments to people who have arrived in a motor vehicle. How can any society claim to provide its citizens any serious defense against drunk drivers when bars and restaurants serve liquor to people who have driven to the establishment in motor vehicles and then allow them to leave without a full and complete knowledge of their level of intoxication?  

               Let’s examine the business model at issue. The concept of driving up to a restaurant is so you can be served food, eat it and go home. The same is true of a bar. The concept is that you “drive up”, park in the bar parking lot, purchase and consume liquor, and then leave. How can this be legal? How can any society claim to be protecting its citizens when this is permitted as a commonly accepted social transaction?  What is the difference between driving up to a bar, walking in, having a couple of drinks, getting in your car and leaving, vs. driving to a drive-through window, ordering a shot of whiskey, throwing it back and returning to the road? There is no difference. So, how would a community react to a drive up window at the local bar? And if a community would be outraged, I would ask them to describe how this differs from pulling up to an establishment, walking in, having some drinks and driving on? If  you have been to a bar or restaurant lately you have no doubt noticed that before you are completely finished with the drink in your hand, the bartender or waiter is already asking if you are ready for another.  In every case, I am quite certain that they have no idea if you are buzzed or not, what your personal alcohol tolerance level is, or whether have driven yourself there. They don’t ask. You don’t tell.  

               Stopping people from driving while intoxicated after they leave a bar is like stopping the sale of cigarettes to people under 18 by waiting down he street from the supermarket to see who’s smoking in their car. Is that an effective or intelligent way to stop the sale of cigarettes to minors? Stopping people in cars randomly on the street as a way to prevent drunk driving is just as unreasonable to really stop the behavior. To stop the sale of cigarettes to minors you have to stop the seller from making the sale. You have to nip the sale in the bud at inception. Stopping the sale of liquor to people with cars parked on an establishment’s property has to be done at the point of sale using every tool available with the responsibility on the owners and servers. Stopping drivers on the street rather than at the bar is a waste of our resources and provides us with a false sense of security. Many innocent drivers are stopped and many drunk drivers are missed. 

               There are reasonable, simple and inexpensive options to look at to stop the consumption of liquor by those about to drive. First, every bar and restaurant should determine that the person being served liquor has a designated driver whom the bar refuses to also serve. Moreover, patrons should never be allowed to leave a bar or restaurant without taking a breathalyzer test controlled by the establishment’s owner or manager. The results should be digitally recorded so that the establishment can absolve itself from liability if a patron leaves the establishment with a passing score. On the other hand, if a patron fails the test then the establishment would be liable if it failed to prevent the driver from driving or failed to call the police if the driver refuses to refrain from getting in his vehicle. The breathalyzer cure has been suggested for years, yet no solid legislation has required such testing of customers or has set forth liability on servers for failing to act on the results. Often, the server of drinks, the bartender, is the person left to determine if the person being served is too intoxicated to drive. Many bartenders are persons of young age and youthful judgment, who are less concerned with the establishment’s legal liability and road safety as with being a popular host and receiving regular customers and high tips. Additionally, if a bartender rightly cuts off a customer for being visibly intoxicated, that does not prevent the customer from leaving the bar and driving away. So the problem continues. 

               Most States have Dram Shop laws that hold establishments where a person was served liable for injuries caused by such person after leaving the establishment. States vary on the ease or difficulty of putting liability on the establishment. Regardless, there are an estimated 15,000 deaths each year caused by drunk driving. That number of course does not include those that are injured or maimed in drunk driving accidents but not killed. That number also does account for those that drive drunk and nearly crash but don’t, or those that drive drunk, incur no issues at all and are not pulled over. So while the laws provide liability, they do not adequately protect the general public from the risk.          

               The liquor lobby and small business communities would of course become combative with any proposed legislation having a designated driver requirement or a breathalyzer requirement, as this can only serve to limit the number of drinks sold. It would require tighter controls on who could drink since liquor could only be served in a limited amount to vehicles’ designated drivers, and would limit the ability of anyone to arrive at a bar alone in a motor vehicle, and this would hurt bar's and restaurant's bottom lines.