In “Dram Shop” litigation—where a bar or restaurant is sued for damages caused by an intoxicated patron—the case often hinges on a single, subjective question: Was the patron visibly intoxicated at the time of service?

As a Dram Shop liability expert, I help attorneys navigate the complex intersection of blood alcohol content (BAC) science and the practical standard of care required of bartenders and servers.

Here is how we evaluate liability in alcohol over-service cases.

1. The “Visible Intoxication” Standard

While a driver is legally drunk at 0.08% BAC, a bartender cannot administer a breathalyzer. Therefore, most state laws do not require the server to know the patron’s BAC; they require the server to recognize observable signs of intoxication. Liability attaches when a server continues to serve a patron who is already showing these signs.

2. Recognizing the Signs (The “Clues”)

Bartenders are trained (via programs like TIPS or ServSafe Alcohol) to look for specific behavioral cues. In a lawsuit, I analyze witness testimony and video footage for these “red flags”:

• Physical: Slurred speech, stumbling, fumbling with money, drooping eyelids.
• Behavioral: Overly loud or aggressive speech, annoying other customers, buying rounds for strangers.
• Consumption Rate: Drinking rapidly or ordering “doubles” back-to-back.

If the evidence shows these signs were present and ignored, the establishment may have breached its duty of care.

3. The “Safe Service” Standard of Care

Defense attorneys often argue that the patron “held their liquor well.” However, the standard of care goes beyond observation—it includes systems and policies. I audit the establishment’s protocols:

• Was the staff trained? Did they have valid alcohol safety certifications?
• Was there a “Cut-Off” Policy? Does the bar have a written procedure for stopping service and calling a cab?
• Incident Logs: Was the altercation or ejection documented in a logbook?

4. Reconstructing the Timeline

Dram shop cases are puzzles. We reconstruct the “drinking timeline” using:

• POS Receipts: Timestamped checks show exactly how many drinks were served and how quickly.
• Surveillance Video: Provides visual proof of stumbling or aggressive behavior.
• Witness Statements: Corroborating the patron’s demeanor.

Key Takeaway: A Dram Shop case isn’t just about the drunk driver; it is about the point of service. If the establishment prioritized profit over safety by serving a visibly intoxicated guest, they share the liability.