A person who appeared drunk and had a blood alcohol level of .12 at 10:30 was probably exhibiting signs of intoxication at 8:00, a New York court has determined. In Poppke v. Portugese American Club of Mineola, (Sup. Ct. Nassau County, 6871/08), the trial judge denied summary judgment to the defendant club seeking dismissal of a Dram Shop action.

Plaintiff pedestrian was stuck by a car driven by a Mr. Amador. Amador had approximately 4 beers at the club, the last being at 8:00. Amador testified that he was not slurring his speech, did not spill any alcohol, and had no complaints regarding his behavior. The President of the club and other witnesses testified that Amador was acting “normal” and was not slurring his speech or stumbling. Based upon this testimony, the club moved for summary judgment.

Plaintiff countered with an expert report noting that, at 10:30 and 11:30 Amador was exhibiting signs of intoxication, including slurred speech, he smelled of alcohol and had watery and bloodshot eyes.

The court noted that, while a high blood alcohol level was not enough to create an inference about a person’s appearance, plaintiff’s expert did not rely solely on Amador’s blood alcohol level, but stated that, within a reasonable degree of medical certainty, Amador would have exhibited signs of intoxication at 8:00, when he was served his last beer. This report created a question of fact as to whether the club served a visibly intoxicated person. Therefore, the court denied the club’s motion for summary judgment.

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