DOT HS 811 142

May 2009
Laws Prohibiting Alcohol Sales
To Intoxicated Persons
Legal Research Report  





































This document is distributed by the U.S. Department of Transportation, National Highway Traf-
fic Safety Administration, in the interest of information exchange. The opinions, findings, and
conclusions expressed in this publication are those of the authors and not necessarily those of the
Department of Transportation or the National Highway Traffic Safety Administration. The
United States Government assumes no liability for its contents or use thereof. If trade or manu-
facturers’ names are mentioned, it is only because they are considered essential to the object of
the publication and should not be construed as an endorsement. The United States Government
does not endorse products or manufacturers.
This report was prepared by James Mosher, Allyson Hauck, Maria Carmona, Ryan Treffers,
Dave Reitz, Chris Curtis, Rebecca Ramirez, Aidan Moore, and Stacy Saetta, staff of the Pacific
Institute for Research and Evaluation.








































Technical Report Documentation Page
1. Report No.
DOT HS 811 142
2. Government Accession No. 3. Recipient’s Catalog No.
4. Title and Subtitle
Legal Research Report: Laws Prohibiting Alcohol Sales to Intoxicated Persons
5. Report Date
June 2009
6. Performing Organization Code
7. Author(s)
James Mosher, Allyson Hauck, Maria Carmona, Ryan Treffers, Dave Reitz, Chris
Curtis, Rebecca Ramirez, Aidan Moore, and Stacy Saetta
8. Performing Organization Report No.
9. Performing Organization Name and Address
Pacific Institute for Research and Evaluation
11720 Beltsville Drive, Suite 900
Calverton, MD 20705
10. Work Unit No. (TRAIS)
11. Contract or Grant No.
DTNH 22-06-H-00062
12. Sponsoring Agency Name and Address
National Highway Traffic Safety Administration
1200 New Jersey Avenue SE.
Washington, DC 20590
13. Type of Report and Period Covered
Legal Research Report
September 2006 – August 2007
14. Sponsoring Agency Code
15. Supplementary Notes
Robert L. Hohn was the Contracting Officer’s Technical Representative for this project.
16. Abstract
In September 2006, the National Highway Traffic Safety Administration funded the Pacific Institute for Research and Evaluation
to conduct legal research on State statutes and regulations that pertain to alcohol sales and/or service to intoxicated people to re-
duce injuries and fatalities stemming from alcohol impaired driving. The research was to explore the variation in State sales to
intoxicated people (SIP) laws and include examination of case law to assess how statutory language has been interpreted in court
cases. The research was also to include a qualitative component that collected data on key issues specific to SIP law enforcement
and adjudication practices. This report summarizes the findings of this research.
Legal research findings related to six key elements: types of laws; defendants; definition of intoxication in statutory language;
prohibited activities; evidentiary requirements; and penalties. The single most notable finding from the qualitative enforcement
research is that SIP enforcement is relatively rare. Lack of enforcement appears to be due to three main factors: cultural
norms/lack of political will to address SIP law violations; limited resources to engage in SIP enforcement operations; and statu-
tory evidentiary provisions that make the collection of evidence overly burdensome. Other noteworthy findings concern factors
that affect enforcement practice. Three case studies of State-specific enforcement and adjudication issues offer insight into SIP
enforcement in Baton Rouge, Louisiana, and in California and New Mexico. The report concludes with 13 “best practice” rec-
ommendations.
Laws Prohibiting Alcohol Sales to Intoxicated Persons is designed for policymakers, administrators, researchers, law enforce-
ment professionals, health and safety advocacy groups, and others who are working to reduce injuries and fatalities stemming
from alcohol impaired driving. The findings and best practice recommendations provide a foundation for augmenting their ef-
forts to prevent these tragedies on the Nation’s highways with the effective application of State SIP laws.
17. Key Words
Alcohol statutes, alcohol regulations, alcohol law enforcement, over-service of al-
cohol, DUI, DUI reduction, alcohol sales to intoxicated people, retail alcohol sales
practices
18. Distribution Statement
This document is available to the public
online at www.nhtsa.dot.gov and from
the National Information Service, Spring-
field, VA 22160.
19 Security Classif. (of this report) 20. Security Classif. (of this page) 21 No. of Pages
124
22. Price
--
Form DOT F 1700.7 (8/72) Reproduction of completed page authorized
i



Acknowledgements
The authors would like to thank the Special Investigations Division of the New Mexico Depart-
ment of Public Safety, the Alcohol and Gaming Division of the New Mexico Department of
Regulation and Licensing, the California Department of Alcoholic Beverage Control, the Detec-
tive Support and Vice Division of the Los Angeles Police Department, the Louisiana Office of
Alcohol and Tobacco Control and the Office of Alcoholic Beverage Control and Gaming En-
forcement within the City of Baton Rouge Louisiana’s Office of the Parish Attorney. Their will-
ingness to share information about this important area of alcohol law enforcement is truly appre-
ciated.
ii























TABLE OF CONTENTS
Acknowledgements......................................................................................................................... ii
Table of Contents........................................................................................................................... iii
Executive Summary.........................................................................................................................1
Introduction......................................................................................................................................4
Research Methodology ....................................................................................................................6
Legal Research.....................................................................................................................6
Enforcement Research .........................................................................................................7
Findings............................................................................................................................................9
Legal Research Findings......................................................................................................9
Enforcement Research Findings ........................................................................................19
Case Studies...................................................................................................................................23
Baton Rouge, Louisiana.....................................................................................................23
California ...........................................................................................................................26
New Mexico.......................................................................................................................30
Discussion and Best Practice Recommendations ..........................................................................35
Addressing Variation and Uncertainty Within Legal Statutes...........................................35
Addressing the Challenge of Sufficient Resources for Enforcement ................................39
Conclusion .....................................................................................................................................44
References......................................................................................................................................45
Appendix A: Overview of SIP Statutes and Regulations .............................................................49
Appendix B: State SIP Statutes.....................................................................................................50
Appendix C: SIP Case Law ........................................................................................................101
Appendix D: Telephone Interview Protocol ...............................................................................111
Appendix E: Onsite Interview Protocol ......................................................................................115
iii











EXECUTIVE SUMMARY
In September 2006, the National Highway Traffic Safety Administration funded the Pacific Insti-
tute for Research and Evaluation to conduct legal research on State statutes and regulations that
pertain to alcohol sales and/or service to intoxicated people. The research was to explore the
variation in State sales to intoxicated people (SIP) laws and include examination of case law to
assess how statutory language has been interpreted in court cases. The research was also to in-
clude a qualitative component that collected data on key issues specific to SIP law enforcement
and adjudication practices. This report summarizes the findings of this research.
The methodology employed for this study began with legal research using Westlaw, an online
tool providing quick, easy access to current and historical statutes and regulations for all 50
States, the District of Columbia, and the Federal Government, case law, and law review journal
articles. The first step of the legal research involved identifying 8 to10 State statutes and regula-
tions and analyzing them to determine key variables. Variables were selected and defined based
on both legal and social science criteria to insure accurate descriptions of the laws and to facili-
tate comparisons across jurisdictions. Step two of the legal research followed with statu-
tory/regulatory research on a jurisdiction-by-jurisdiction basis using a “terms and connectors”
query available in Westlaw. Once statutory/regulatory research was completed, researchers con-
ducted a selective review of State case law using the Liquor Liability Law treatise and Westlaw
to identify major cases for each State.
When the legal research was completed, key informant interviews were conducted with law en-
forcement chiefs from 10 State alcohol beverage control agencies to confirm findings vis-à-vis
statutes, regulations, and case law. These 10 States included States with strong SIP statutes;
States in which case law research findings required more clarification or a law enforcement in-
terpretation; a geographically diverse sample of States; and a combination of license and control
States. Based on the results of both the legal research and the key informant interviews, three
jurisdictions were selected for deeper-in-depth qualitative research specific to SIP enforcement
and adjudication practices. Onsite, semi-structured interviews were conducted with officials
from the City of Baton Rouge Office of Alcoholic Beverage Control, the California Department
of Alcoholic Beverage Control, the Los Angeles Police Department, and the New Mexico Divi-
sion of Special Investigations and the New Mexico Division of Alcohol and Gaming.
Legal research findings related to six key elements:
1)  Types of Laws Most States have both criminal and administrative laws prohibiting sales
of alcohol to intoxicated people; only Florida and Nevada have no such laws at the State
level. There are important differences between criminal and administrative SIP laws in
terms of the standards of evidence required to prove guilt, who may be charged with a
violation, and what types of penalties may be imposed on SIP law violators.
2)  Defendants Criminal SIP statutes indicate variation among States in terms of who may
be cited for alcohol service to intoxicated people. Twenty-eight States hold that “any
person” may be held liable for violation of the criminal statute. Eighteen hold licensees
1













and/or servers liable. Three States impose more narrow restrictions on who may be held
criminally liable.
The 48 States with administrative SIP statutes/regulations impose liability on licensees
for violations. States with mandatory Responsible Beverage Service (RBS) programs
may also impose separate administrative violations applicable to servers. Two States
limit the application of their administrative laws to servers if the licensee has trained its
staff (Texas) and to licensees with drive-in areas (Wyoming).
3)  Definition of intoxication in statutory language State statutes use a variety of terms for
denoting visible (or obvious) intoxication in their SIP laws, and most provide no defini-
tion for the term employed; however, court opinions across States are remarkably consis-
tent in their interpretations of these laws.
4)  Prohibited activities Most States use a variety of terms to denote that any furnishing of
alcohol to an intoxicated person is prohibited. At least 16 State laws have an explicit
provision that prohibits allowing intoxicated people to consume alcohol on licensed
premises and may also prohibit remaining on the premises or loitering.
5)  Evidentiary requirements Although there is a great deal of consistency across States in
their interpretation State laws defining intoxication, States vary widely in what evidence
is required to establish a SIP violation. Many States have multiple statutes that may have
differing evidentiary standards, with criminal proceedings likely to have stricter standards
than administrative hearings. In most cases State statutes and regulations provide little or
no guidance, leaving it ultimately to the courts to determine the proper standards to be
applied.
6)  Penalties SIP laws can involve two distinct sets of penalties – criminal and administra-
tive – each with distinct penalty provisions. In addition, many States have multiple
criminal and administrative provisions, each of which may involve differing penalties.
Most States do not specify what the penalties are for SIP violations in the SIP statutes and
regulations. In these cases, reference must be made to general penalty provisions that ap-
ply to multiple offenses. Of the 47 jurisdictions with criminal statutes, 45 appear to per-
mit imprisonment. Fines may be imposed either instead of or in addition to imprison-
ment, with maximum fines varying widely by State. Only a handful of States have estab-
lished graduated penalty structures, with relatively more severe penalties imposed for re-
peat offenses.
Most States give wide latitude to administrative agencies in determining penalties for SIP
violations, and only a small number of State statutes and regulations provide limits on the
agency’s discretion or mandate structured punishments. Eleven States have established
tiered or graduated penalty schedules providing harsher administrative penalties for re-
peat offenses.
The single most notable finding from the qualitative enforcement research is that SIP enforce-
ment is relatively rare. Lack of enforcement appears to be due to three main factors: (1) cul-
2





tural norms regarding the acceptability of alcohol sales to intoxicated people or lack of political
will to address a known problem with SIP law violations; (2) Limited resources to engage in SIP
enforcement operations; and (3) statutory provisions specific to elements of proof that make the
collection of evidence overly burdensome. Other noteworthy findings concern factors that affect
enforcement practice such as the imposition of penalties, interagency collaboration, training, and
use of technology. Three case studies of State-specific enforcement and adjudication issues offer
insight into SIP enforcement in Baton Rouge, Louisiana, and the States of California and New
Mexico.
The report concludes with “13 Best Practice Recommendations.” Legal best practice recom-
mendations pertain to statutory language on defendants, definition of intoxication, prohibited ac-
tivities, evidentiary requirements, and penalties. Enforcement best practice recommendations
pertain to interagency collaboration, data collection and analysis, forging alliances with health
agencies and advocacy groups, using data to set priority enforcement areas and drive decision-
making about resource allocation, providing training in SIP enforcement for law enforcement
officers, and making use of available technologies to gather evidence.
Laws Prohibiting Alcohol Sales to Intoxicated Persons is designed for policymakers, administra-
tors, researchers, law enforcement professionals, health and safety advocacy groups, and others
who are working to reduce injuries and fatalities stemming from alcohol-impaired driving. The
findings and best practice recommendations provide a foundation for augmenting their efforts to
prevent these tragedies on the Nation’s highways with the effective application of State SIP laws.
3






















INTRODUCTION
The cost of alcohol-related harm to society is enormous, in both human and economic terms:
•  At least 85,000 people die each year from alcohol-related causes, making alcohol-related
problems the third leading cause of death in the United States.
1
•  Impaired driving is a significant cause of injuries and fatalities in the United States. Al-
cohol impaired driving was involved in 32 percent of traffic crash fatalities in 2007, re-
sulting in 12,998 fatalities.
2
•  Almost one in four victims of violent crime report that the perpetrator had been drinking
prior to committing the violence.
3
It is estimated that 32 to 50 percent of homicides are
preceded by alcohol consumption by the perpetrator.
4
•  Approximately 39 percent of accidental deaths and 29 percent of suicides in the United
States are linked to the consumption of alcohol.
5
•  The total monetary cost of alcohol-attributable consequences (including health care costs,
productivity losses, and alcohol-related crime costs) in 1998 was estimated to be a stag-
gering $185 billion.
6
Alcohol service and sales practices can be linked to the increased risk of impaired driving and
alcohol-related violence and injury. Approximately 50 percent of drinking drivers start their in-
toxicated journey from licensed establishments.
7
Serving alcohol to intoxicated people can also
result in other risky behavior and criminal outcomes.
8
One out of 10 alcohol-involved violent
incidents occurs in a bar or restaurant.
9
Excessive alcohol consumption also leads to law en-
forcement “calls for service” for a variety of problems, including motor vehicle crashes, as-
saults, alcohol poisoning, vandalism, and disorderly conduct.
10
These findings strongly suggest
that the enforcement and prosecution of laws governing the sale or provision of alcohol at li-
censed establishments should have a significant impact on alcohol-related problems since intoxi-
cation can be controlled at the level of the licensed establishment.
The public health research literature has largely ignored the role of alcohol service laws in reduc-
ing problems related to intoxication. What little research is available strongly suggests that: (1)
there is an association between serving practices and the over consumption of alcohol;
11
and (2)
interventions designed to improve serving practices and the enforcement of laws governing these
practices will produce a decrease in alcohol-related harm.
12
In 2005, Pacific Institute for Research and Evaluation (PIRE) produced a report for the National
Highway Traffic Safety Administration examining State laws addressing alcohol service to in-
toxicated people and the sale of reduced-price alcoholic beverages (i.e., “drink specials”).
13
As
part of this work, PIRE also reviewed the research literature documenting the association be-
tween over-consumption and serving practices, and the then current status of enforcement and
adjudication of these laws, and identified existing promising enforcement strategies to address
overservice of alcohol. Major findings of the report specific to SIP laws were as follows:
4















•  Nearly every State and the District of Columbia prohibit sales to intoxicated people.
•  There is considerable variation among State laws in terms of language employed to de-
scribe the state of intoxication as well as the provision of alcohol.
•  States also vary on the level of proof required to prove guilt as well as who can be held
liable for a violation of the SIP law.
•  States may employ two types of penalties on licensees whose establishments are found to
have sold alcohol to an intoxicated person: criminal penalties and civil penalties.
•  SIP laws appear to go largely unenforced.
•  Two promising enforcement strategies for addressing SIP law violations involved collect-
ing “place of last drink” information for all DUI arrests (Washington State and Utah) and
targeting undercover SIP investigations to establishments identified by local law en-
forcement as “problem locations.”
In September 2006, NHTSA funded PIRE to conduct additional legal research in order to build
upon earlier findings. This research involved deeper-in-depth analysis of statutes and regulations
that pertain to alcohol sales and/or service to intoxicated people. It also explored the variation in
State SIP laws and included examination of case law to further assess how SIP statutory lan-
guage has been interpreted in SIP court cases. Last, this research included a qualitative compo-
nent that collected data on key enforcement issues specific to SIP enforcement. This report
summarizes the findings of this research.
Laws Prohibiting Alcohol Sales to Intoxicated Persons begins with an overview of the method-
ologies used to conduct the legal research on State SIP statutes and the qualitative research on
SIP enforcement issues. Findings are then presented in the subsequent section. Three case stud-
ies of State-specific enforcement and adjudication issues are then presented. The report con-
cludes with recommendations specific to statutory language and enforcement practice. The Ap-
pendices contain tables providing an overview of State SIP laws, deeper-in-depth State-by-State
profiles of SIP laws, and SIP case law findings, as well as the protocols used for the telephone
and on-site interviews.
5
















RESEARCH METHODOLOGY
Legal Research
To provide accurate and complete legal data, legal research staff researched all State SIP laws
and regulations using Westlaw, a primary source for legal data. Westlaw is an online legal re-
search tool that includes current and historical statutes and regulations for all 50 States, the Dis-
trict of Columbia, and the Federal Government, case law, and law review journal articles. The
primary legal research is supplemented with reference to secondary resources including legal
treatises, newsletter, reports, journals, and other documents.
In general, the legal research followed the protocols established for the Alcohol Policy Informa-
tion System (APIS), a project of the National Institute on Alcohol Abuse and Alcoholism.
14
The
legal researchers of the project team serve as staff for the APIS project. Step one involved iden-
tifying eight to 10 State statutes and regulations and analyzing them to determine key variables.
Variables were selected and defined based on both legal and social science criteria to insure ac-
curate descriptions of the laws and to facilitate comparisons across jurisdictions. Six variables
were selected.
• Who may be held liable?
• For what act?
• Definition of intoxication
• Mental state of seller
• Penalties: Administrative
• Penalties: Criminal
If a given statute or regulation applied only criminally or administratively, a notation to this ef-
fect was made.
In step two, research attorneys conducted the statutory/regulatory research on a jurisdiction-by-
jurisdiction basis using a “terms and connectors” query in Westlaw. The query contained the key
terms necessary to capture the applicable law in that jurisdiction and policy topic, searching for
all relevant codified statutes and adopted regulations in effect as of January 1, 2007 (the endpoint
used for this research). During the course of the research, it was found that numerous States had
more than one statutory or regulatory provision addressing SIP violations. In these cases, each
provision was analyzed separately. If the laws operated in conjunction with each other (e.g., a
regulation further defined a more general statutory provision) a single entry in the variables
fields was completed. If two separate violations were defined in a single jurisdiction, then two
entries were made. Relevant citations were also collected and posted. See Appendix A for an
overview of SIP statues and regulations. See Appendix B for detailed State-by-State results of
the statutory/regulatory research.
The most difficult aspect of this type of legal research is the risk that a critical statute or regula-
tion will be inadvertently omitted. States use differing terminology to refer to SIP violations.
Although most SIP laws are in the State’s Alcoholic Beverage Control (ABC) laws, this is not
always the case, particularly for the penalty variables. For these reasons, the “terms and connec-
tors” search may not capture all relevant data. For States that appeared to contain missing data,
6











the research was supplemented by (1) examining Westlaw’s tables of contents; (2) reviewing
secondary sources; (3) examining the Liquor Control Law Reporter
15
and the Liquor Liability
Law treatise;
16
and (4) conducting a “natural language” search in Westlaw.
As discussed in more detail in the findings section, in many cases relevant laws were unclear,
making interpretation and categorization difficult or impossible. This problem arose particularly
in the research of penalties. The SIP laws frequently did not include penalties or refer to relevant
penalty provisions. In these cases, more general penalty provisions apply. These can be located
in a variety of places within a State’s legal codes, and several may apply. In these circum-
stances, coding cannot be definitive without referring to internal agency documents or interview-
ing relevant State personnel, steps that are beyond the scope of this research project. For this
reason, the penalty data is not included in the State tables, and the findings are presented in more
general terms in the body of the report. When a State law failed to address a given variable, the
relevant cell of the table was left blank.
Step three involved a selective review of State case law. The Liquor Liability Law treatise was
used to identify major cases for each State. Appendix A of the treatise contains State-by-State
summaries of key case law. The summaries include references, and the cases were located on
Westlaw and downloaded for review. Although the cases focus primarily on dram shop liability
claims, many contain interpretations of the SIP laws, which frequently serve as the basis for a
finding of dram shop liability. The cases found in the Liquor Liability Law treatise were supple-
mented with additional case law identified in the Westlaw statutory/regulatory research. No at-
tempt was made to identify all case law; such an attempt would be an expensive and technically
difficult endeavor with questionable benefits. It would require identification and review of all
historical case law and extensive interpretation and conjecture regarding the applicability of a
given case to modern circumstances and varying fact patterns. The resulting analysis would
therefore of necessity be uncertain and speculative, not justifying the high labor costs involved.
Each case included in the project was analyzed and summarized. Summaries are found in Ap-
pendix C.
Enforcement Research
Once the research attorneys completed the legal research, 10 States were selected for additional
study in order to confirm findings vis-à-vis statutes, regulations, and case law. Ten law en-
forcement chiefs from State alcohol beverage control agencies were contacted and asked to par-
ticipate in semi-structured telephone interviews. The States selected were chosen based on the
following criteria:
•  States with stringent statutes on sales to intoxicated people;
•  States with case laws that appeared to need more clarification or a law enforcement per-
spective on how case law has affected law enforcement practice;
•  Geographically diverse sample of States; and
•  Mix of license and control States.
Interviews were conducted with officials from California, Colorado, Louisiana, New Mexico,
New Hampshire, Oregon, Texas, Utah, Virginia, and Washington. Every State official who was
approached agreed to participate in the key informant interview process.
7




The first portion of the interview questions aimed at determining the implications of the legal
research findings on law enforcement practice. The remaining portions of the interview focused
on administrative proceedings, administrative penalties, and the potential roles and responsibili-
ties of local jurisdictions. The list of questions completed during this portion of the project is
included as Appendix D.
Based on the results from the legal research and key informant interviews that indicated a com-
prehensive set of statutes but variation in level of enforcement, three jurisdictions were selected
for a deeper-in-depth analysis specific to enforcement and legal practices involved in the adjudi-
cation of cases involving sales and service to intoxicated patrons. Onsite, semistructured inter-
views were conducted with officials from the Baton Rouge Office of Alcoholic Beverage Con-
trol, the Louisiana Office of Alcohol and Tobacco Control, the California Department of Alco-
holic Beverage Control, the Los Angeles Police Department, the New Mexico Division of Spe-
cial Investigations, and the New Mexico Division of Alcohol and Gaming. The interview proto-
col used during these interviews focused on SIP enforcement protocols and procedures, resource
allocation for SIP enforcement, and barriers to enforcement. (Appendix E contains the interview
protocol used during the three onsite visits.) These key informant interviews form the bases of
the three case studies that appear later in this report.
8










FINDINGS
Legal Research Findings
Legal statutory and case law research produced important findings related to six key elements:
(1) types of laws; (2) defendants; (3) definition of intoxication in statutory language; (4) prohib-
ited activities; (5) evidentiary requirements; and (6) penalties.
1. Types of laws: Administrative/criminal
Laws prohibiting alcohol sales to intoxicated people can be either criminal or administrative.
Criminal laws are enacted by statute and adjudicated through the criminal justice system. Crimi-
nal convictions are considered more serious than administrative violations, as they reflect moral
approbation and have potentially serious restrictions on individual freedom. Prosecutors must
meet more demanding standards of proof in a jury trial, with sufficient evidence to establish that
the defendant committed the crime “beyond a reasonable doubt.”
17
A guilty verdict can result in
criminal penalties, including fines and/or imprisonment.
By contrast, administrative laws are adjudicated by executive agencies, typically (although not
always) the State’s alcoholic beverage control agency under authority granted by the State legis-
latures. They are initiated only when an alcohol retail licensee (“licensee”) or one of its employ-
ees (“servers”) is alleged to have violated the law. A SIP violation can lead to restrictions on the
licensee’s ability to do business through sanctions imposed against the establishment’s license, in
the form of fines, suspensions, or revocation. Thirteen States mandate Responsible Beverage
Service (“RBS”) programs for servers and have SIP administrative laws.
18
In these States, sanc-
tions similar to those imposed on licensees can also be imposed on the server’s permit. Eviden-
tiary requirements in administrative hearings are not as rigorous and factual findings are made by
an administrative judge usually based on the “preponderance of the evidence.”
19
One illegal SIP event may lead to both criminal and administrative action. For example, in a case
where a server sells alcohol to an intoxicated person, the server may be charged criminally for
making the sale, an administrative action may be taken to suspend the clerk’s serving permit, and
the licensee may be charged criminally and/or administratively for the actions of the server. The
criminal case will be transferred to the relevant district attorney's office. The administrative case
will be handled by an agency assigned this responsibility, often within the same agency that is
responsible for the administrative law's enforcement.
Most States have both types of laws. (Citations for State statutes can be found in Appendix B,
which provides summaries of each State’s laws and regulations.) The same underlying law may
provide the basis for either type of proceeding, or two or more statutes and regulations may be
present. Only Florida and Nevada have neither type of law at the State level. Nevada cities and
counties have primary responsibility for licensing alcohol outlets. Administrative laws prohibit-
ing alcohol sales to intoxicated people may therefore exist at the local level as part of a city or
county’s licensing ordinance. This is the case in Las Vegas, by far the largest city in Nevada.
20
Rhode Island and Vermont have administrative laws but no criminal penalties. The remaining
46 States and the District of Columbia have both types of laws.
9













2. Defendants: Who may be found in violation?
Potential violators will differ depending on whether the statute is criminal or administrative,
since administrative laws apply only to licensees and servers in States with mandatory RBS pro-
grams. Criminal laws can apply to any individual who serves an intoxicated person, whether in a
commercial or non-commercial setting (so that they can be applied to social hosts serving in pri-
vate homes). Twenty-seven of the 46 States with criminal statutes, as well as the District of Co-
lumbia, apply them to “any person,” which includes licensees and servers.
The remaining 18 States apply their criminal statutes only to licensees and/or servers (see Ap-
pendix A). Texas has one statute that applies to “any person,” but another statute protects licen-
sees from criminal and administrative liability if the licensee’s employees have received RBS
training. Texas law therefore applies to “any person” except licensees with trained employees.
Wyoming administrative and criminal laws apply only to licensees “with a drive-in area adjacent
or contiguous to the licensed room.” This language exempts all non-commercial service and
limits its application to a small subset of retail licensees. South Dakota limits criminal liability
to licensees and does not include servers.
Forty-eight States and the District of Columbia have administrative laws all of which apply to
licensees (every State except Florida and Nevada, which do not have SIP laws). As noted above,
the 13 States with mandatory RBS programs and SIP laws may impose separate administrative
violations applicable to servers. Texas and Wyoming limit the application of their administrative
laws to servers if the licensee has trained its staff (Texas) and to licensees with drive-in areas
(Wyoming).
3. Intoxication definition in SIP laws
States use a variety of terms to define the types of service that are prohibited, e.g., to a person
who is intoxicated, drunk, visibly intoxicated, obviously intoxicated, has become intoxicated, or
is incapacitated due to alcohol consumption.
21
At least 7 States actually define the term “intoxi-
cated” by statute: Alaska, Arizona, Hawaii, Nebraska, New Hampshire, New Jersey, and Vir-
ginia. Although using differing terms, the statutory definitions are similar, referring to alcohol’s
observable intoxicating effect on an individual’s physical and/or mental conduct. Virginia, for
example, has this definition:
Intoxicated means “a condition in which a person has drunk enough alcoholic beverages
to observably affect his manner, disposition, speech, muscular movement, general ap-
pearance or behavior.”
22
Alaska uses the term “drunken person,” which has a substantially similar definition:
"Drunken person" means a person whose physical or mental conduct is substantially im-
paired as a result of the introduction of an alcoholic beverage into the person's body and
who exhibits those plain and easily observed or discovered outward manifestations of be-
havior commonly known to be produced by the overconsumption of alcoholic bever-
23
ages.
10





















Nebraska provides the most comprehensive definition by providing a non-inclusive list of
visible intoxication indicators in its regulation:
•  Problems with balance, inability to maintain balance, e.g., stumbling, staggering gait,
bumping into furniture while walking, falling against bar or off stool, head on bar;
•  Ineffective muscular coordination, e.g., spilling and/or knocking over drinks, unable to
pick up change;
•  Strong smell of alcohol;
•  Slurred speech, e.g., thick tongue, uncontrollable voice pitch, muttering;
•  Bloodshot and/or glassy eyes, e.g., flushed face;
•  Condition of clothes and hair, e.g., disheveled appearance, messy hair, unzipped clothing;
•  Unusual behavior, e.g., vomiting, profanity, hiccups, fighting, loud, boisterous, obnox-
ious behavior.
24
Definitions for Hawaii and New Hampshire also note that intoxication includes inability to care
for self or guard against casualty.
For States that do not define intoxication in their statutes, substantially similar definitions are
found in State court opinions. Courts have refused to apply definitions of intoxication or im-
pairment found in other parts of the law, for example, from driving under the influence (DUI)
statutes, which define impairment without reference to visible or obvious signs of intoxication.
25
Such a substitution would create a strict liability standard whereby servers could be held in viola-
tion even if there was no visible basis for the server to determine that the person being served
was intoxicated.
26
Courts instead infer the requirement that the individual’s impairment be “ap-
parent,” “visible,” or “obvious” when these terms are not included in the SIP statute.
27
By creat-
ing this inference, courts uphold the statute in the face of challenges that the definition is am-
biguous, vague, or arbitrary.
28
An additional definitional issue involves the extent to which a person’s intoxication is visible or
obvious. Most statutes do not address this issue. Courts generally interpret the law in a similar
fashion, even if not explicit, creating a fluid standard that becomes an issue of fact rather than
law. Visible intoxication involves multiple outwardly observable signs of alcohol consumption.
Evidence that a person had been drinking is not sufficient, but evidence of heavy intoxication is
not required. A Connecticut court, for example, held in one case that the term intoxication re-
quires something more than merely being under the influence of alcohol, but in a later case clari-
fied that a violation does not require showing that the person was “dead-drunk.”
29
In summary, State statutes use a wide variety of terms for denoting intoxication in their SIP laws,
and most provide no definition of the term. Despite the various terms used in State statutes and
various case law interpretations, court opinions across States are remarkably consistent in their
interpretations of these laws.
4. Prohibited activities
Most States use a variety of terms to denote that any furnishing to an intoxicated person is pro-
hibited.
30
New Mexico, for example, prohibits the “selling, serving, procuring, or aiding in the
procurement of alcoholic beverages to an intoxicated person.” Georgia’s law uses the terms
“sold,” “bartered,” “exchanged,” “given,” “provided,” or “furnished”; the District of Columbia’s
11











law uses the terms “sale” or “delivery”; and Delaware’s law uses only the terms “sell” or
“serve.” The variation in terms probably has no legal significance, so long as any exchange of
the alcoholic beverage from the server to the intoxicated person is included. Four States – Rhode
Island, South Carolina, Tennessee (off-sale retailers only), and Virginia – only prohibit “sales” in
their SIP laws. This creates the possibility that their statutes do not apply to other forms of de-
livery, such as gifts. A court or administrative agency may interpret the provision to avoid this
artificial distinction, at least as the law applies to commercial vendors. For example, the term
“sale” may be defined elsewhere in the State law to include gratuities.
31
At least 15 States and the District of Columbia have an explicit provision that prohibits allowing
intoxicated people to consume alcohol on licensed premises (see Appendix A), and may also
prohibit remaining or loitering. The prohibition can either be included in the list of other prohib-
ited acts or be listed as a separate offense. As discussed below, this violation may involve differ-
ing evidentiary requirements and may involve separate penalties.
Tennessee has a unique provision that prohibits off-sale retailers to sell to any person who is ac-
companied by a person who is drunk.
32
Alaska has a separate provision applicable to those “re-
ceiving compensation for transporting alcoholic beverages.”
33
5. Evidentiary requirements
Although there is a de facto national standard for defining intoxication, States vary widely in
what evidence is required to establish a SIP violation. The analysis is complicated by the fact
that many States have multiple statutes that may have differing evidentiary standards, with
criminal proceedings likely to have stricter standards than administrative hearings. As discussed
below, in most cases State statutes and regulations provide little or no guidance, leaving it ulti-
mately to the courts to determine the proper standards to be applied.
A central concern is whether State law requires evidence of the mental state of the server at the
time of the service. Eight statutes define the offense as “knowingly” providing alcohol to the
intoxicated person. In these States, evidence of a purchaser’s intoxication must be presented
from which the fact finder can infer that the server knew that the person being served was visibly
intoxicated. This is sometimes described as a “subjective” rather than an “objective” standard –
evidence is required from which the fact finder can infer that the server was actually aware that
the patron was intoxicated. As described by an Indiana court:
“To prove violation of the [SIP] statute, the provider's knowledge must be shown
by a subjective standard, not an objective one. … [It] requires proof that the pro-
vider either had as his conscious objective, or was aware of a high probability,
that he was providing alcoholic beverage to an intoxicated recipient.”
34
At least four additional State laws (Arizona, New Mexico, Utah, and Virginia) explicitly use a
negligence standard, often defined in terms of evidence that the server knew or should have
known or had reason to believe that the patron was intoxicated based on the circumstances of the
service. This is sometimes referred to as an “objective” standard. Evidence that addresses the
server’s perspective is still required, but the subjective mental state is not necessary. Evidence of
the circumstances surrounding the service can be used to demonstrate that a “reasonable person”
12









would have refrained from providing alcohol to the intoxicated person even if the server did not
have actual knowledge of the visible intoxication.
35
Statutes in two States – Alaska and Texas – use a “criminal negligence” standard, requiring evi-
dence of the server’s failure to perceive risk. In practice, evidence of criminal negligence falls
between the two standards described above: There needs to clearer evidence that the server
should have known (sometimes described as reckless disregard), but actual knowledge need not
be established.
36
In States that require evidence of the server’s state of mind, direct evidence of the service is
clearly required – that is, evidence that directly establishes that a particular server provided alco-
hol to an intoxicated person. Testimony by a law enforcement agent that he/she observed a visi-
bly intoxicated patron being served by a named server provides a classic example of direct evi-
dence of the offense being committed. The stricter the standard, the more compelling the direct
evidence needs to be. Inferring actual knowledge on the part of the server is much more difficult
to prove than establishing that a reasonable person would have recognized the intoxicated state
of the patron.
Indirect, circumstantial evidence is relevant to the determination of the server’s state of mind, but
not sufficient standing alone to support a finding of a violation. Drink counts, blood alcohol con-
centration (BAC) readings, observations made after the service (e.g., at a DUI arrest), and obser-
vations by law enforcement officers or other patrons after the service was made are examples of
indirect evidence.
The remaining States and the District of Columbia do not reference the mental state of the server
in their statutes. In these jurisdictions, direct evidence of the server’s provision of alcohol to an
obviously intoxicated patron is clearly sufficient, but not necessarily required, to establish the
offense. Courts may allow a case to go forward based on indirect evidence, from which the trier
of fact can infer that an illegal sale occurred. In some cases, indirect evidence may be sufficient
to establish that a server should have known of the patron’s intoxication, even if there is no ac-
tual observation of the service. For example, a New York court allowed a case to proceed
against a restaurant where the evidence included the following: (1) testimony of a police officer
regarding the intoxicated behavior of a patron one hour after the patron left the restaurant; (2) the
patron’s BAC of .20 grams per deciliter (g/dL) 90 minutes after his crash; and (3) the testimony
of an expert regarding the likelihood that the patron’s intoxication was visible based on the BAC
reading.
37
In Oklahoma, a similar case included evidence that the staff had not received RBS
training and the conditions of the bar made observation difficult or impossible.
38
A Georgia
court allowed a dram shop case to proceed with no direct evidence of the server’s observation of
the patron. The evidence included expert testimony regarding acute alcohol intoxication at par-
ticular BAC readings, the length of time spent by the patron in the establishment, and testimony
that the patron had not eaten for more than 24 hours (thus increasing the alcohol’s intoxicating
effects).
39
In Massachusetts, the court allowed a case to proceed where the evidence of obvious
intoxication was the number of drinks the patron consumed.
40
None of these cases included any
direct evidence that a particular server had served the intoxicated patron.
13











Courts may infer a server mental component and/or require direct evidence without specific
statutory reference. The Hawaii statute, for example, is silent on the matter, but the State’s
courts have required evidence that the server knew or should have known of the patron’s intoxi-
cation.
41
A Vermont court, interpreting a similar Vermont’s regulation, has held that direct evi-
dence is required: “[T]he observation [of the visibly intoxicated person] must be made by the one
selling the liquor. It is not enough that the purchaser’s intoxication was apparent to someone
else.”
42
Courts may allow circumstantial evidence to be presented, but may determine that it is insuffi-
cient as a matter of law to support a conviction. A Massachusetts court, for example, drew the
line at a patron’s admission that he was intoxicated at the time he was served to be evidence suf-
ficient to establish that his intoxication was observable.
43
On the other hand, the knowledge re-
quirement should not be interpreted literally. A server cannot avoid a violation by being will-
fully ignorant of the patron’s intoxicated condition.
44
Courts are more likely to infer a knowledge element in criminal prosecutions, which involve
judgments regarding personal wrongdoing. Administrative violations do not necessarily involve
proof of personal intent or wrongdoing and can be treated akin to traffic tickets or findings of
public nuisance.
Two State statutes specify that BAC readings can be used as evidence in determining obvious
intoxication. In Nebraska, a BAC reading of .10 can be used as an indicator of obvious intoxica-
tion, but at least one additional indicator is required before a violation can be found. Courts may
allow such evidence without it being specified in the law.
45
New Mexico has enacted a unique regulation regarding evidentiary requirements that addresses
the burden of proof. It provides that circumstantial evidence that the person served had a BAC
of .14 or higher within one hour of the service of alcohol creates a rebuttal presumption that the
person was visibly intoxicated for the purposes of a SIP violation. Once the prosecution estab-
lishes the rebuttal presumption by introducing evidence of the patron’s BAC level, the defendant
has the burden of establishing the lack of visible signs of intoxication. Since there is often con-
flicting evidence regarding visible signs of intoxication, this shift in the burden of proof can sig-
nificantly increase the chances that the prosecution will prevail.
As noted above, at least 16 States have additional prohibitions against allowing intoxicated peo-
ple to consume alcoholic beverages and/or remain on a licensed premise. These provisions do
not require evidence of an actual exchange of alcohol from the server to the intoxicated person,
and there may be differing evidentiary requirements regarding server knowledge and direct evi-
dence of the intoxicated person consuming or remaining on the premises.
46
In most cases, the
statutes and regulations do not provide guidance in this regard. Oregon law provides an excep-
tion to this general finding. It has a knowledge requirement included in both of its provisions.
6. Penalties
Analysis of SIP penalties is complex due to three primary factors: (1) As discussed above, SIP
laws involve two distinct sets of penalties – criminal and administrative – each with distinct pen-
alty provisions. (2) Many States have multiple criminal and administrative provisions, each of
14









which may involve differing penalties. (3) Most States do not specify what the penalties are for
SIP violations in the SIP statutes and regulations. In these cases, reference is made to general
penalty provisions that apply to multiple offenses. There may be multiple general penalty provi-
sions, and it is often difficult or impossible to determine which apply to the SIP laws. Our re-
search provides an overview of the State penalty structures focusing in particular on laws that
specify SIP penalties.
Criminal penalties
Criminal penalties are specified by State legislatures in State statutes. Of the 47 jurisdictions
with criminal statutes, 45 appear to permit imprisonment, with maximum terms ranging from
no imprisonment (Maine and Washington) to three years (New Jersey), with most States fal-
ling in the six months to one year range. Delaware and Pennsylvania impose jail sentences
only if the specified fines are not paid.
Fines may be imposed either instead of or in addition to imprisonment, with maximum fines
also varying widely by State. Alaska permits fines up to $10,000, while New York and Utah
do not impose fines for SIP violations. Seventeen States have a $500 maximum and 15
States have a $1,000 maximum fine for first offenses. North Carolina permits fines at the
judge’s discretion without providing a statutory maximum. Two States allow for additional
punishment beyond fines and imprisonment: Delaware requires the defendant to pay the
costs of the prosecution, and North Carolina permits “seizure of alcoholic beverages; forfei-
ture of related property; and restitution to the law enforcement agency.”
Minimum penalties may be provided. At least 13 States impose minimum fines, ranging
from $50 (Missouri and Massachusetts) to $500 (Illinois). New York and North Carolina
impose a minimum imprisonment terms of 15 days and 1 day, respectively; Idaho, New Jer-
sey, and Louisiana give the judge discretion to impose either minimum fines or minimum jail
terms.
At least 6 States (Arkansas, Kentucky, Pennsylvania, Rhode Island, South Carolina, and
Texas) have established graduated penalty structures, with relatively more severe penalties
imposed for repeat offenses. Four States (Arizona, Colorado, New Hampshire, and Utah)
have differing penalties depending on what type of crime is charged. Utah imposes stiffer
penalties if the seller or server had knowledge that the person served was intoxicated. Ari-
zona, Colorado, and New Hampshire give discretion to the prosecutor regarding the type of
offense to be charged, with differing penalties possible. In New Hampshire, the crime may
be treated as a felony or misdemeanor; in Colorado as a petty offense misdemeanor; and in
Arizona, as a choice of two types of misdemeanors.
Numerous exceptions or special provisions create additional distinctions. Colorado, for ex-
ample, treats furnishing alcohol to an intoxicated person as a misdemeanor (punishable by
fine and/or imprisonment) and allowing an intoxicated person to loiter on the premises as a
petty offense (punishable by small fine). Tennessee has differing penalties for on- and off-
sale premises; Louisiana and West Virginia base penalties in part on the type of alcohol be-
ing served.
15






As noted above, criminal penalties may be specific to a given crime or general for a class of
crime (e.g. misdemeanor, felony). In most cases, punishments are not specifically provided in
SIP laws, so that reference must be made to general statutes. This explains at least in part the
relatively high maximum fines/jail terms and the limited number of statutes that provide
minimum and graduated penalties. General penalty statutes are designed to apply to a wide
variety of crimes, these statutes typically contain high maximum penalties and give wide lati-
tude to prosecutors and judges in their choices of punishment.
Administrative penalties
Administrative penalties may be imposed by State statute, administrative regulations, and/or
agency internal guidelines. For SIP violations, the target is the alcohol retail operator’s li-
cense or the alcohol server’s permit. As with criminal violations, most State statutes and
regulations applicable to SIP violations are general in nature (and apply to numerous viola-
tions), so these statutes provide minimal guidance to administrative agencies regarding ade-
quate penalties. Previous research suggests that many administrative agencies have devel-
oped internal sentencing guidelines to augment these general provisions.
47
Our legal re-
search focused solely on statutory and regulatory law so did not capture these more informal
administrative procedures.
All but one State with administrative laws have statutory provisions that permit revocation of
a retailer’s license for a single SIP violation and either explicitly or implicitly allow lesser
penalties, including fines and suspensions. Missouri’s law permits revocation for an admin-
istrative violation and mandates revocation after a criminal SIP conviction. Oregon’s statute
prohibiting sales to intoxicated people allows for cancellation of the license; its statute mak-
ing it a violation to allow an intoxicated person to continue drinking imposes only letters of
reprimand for the first three violations within a two-year period and specifies that the viola-
tions shall not be used in determining a licensee’s record of compliance when applying for
renewal. South Dakota permits only fines (and not license suspension or revocation), even
for multiple offenses. As noted above, two States – Florida and Nevada – have no State law,
and Wyoming’s law is limited to retailers with drive-in facilities where purchases can be
made from a motor vehicle that has pulled up to the establishment’s drive-up window.
Several States provide statutory or regulatory guidelines or limitations on this broad grant of
authority to administrative agencies. For example, New Mexico and Washington permit
revocation after a single offense only when aggravating circumstances exist. New Hamp-
shire requires consideration of aggravating circumstances, the licensee’s record of past viola-
tions, the danger posed to public health and safety, and any adverse impact of the licensee’s
business on the community. Maryland and North Carolina allow licensees to offer to pay
fines in lieu of revocation, although their agencies are not required to accept them.
Eleven States have established tiered or graduated penalty schedules (see Table 1), providing
harsher penalties for repeat offenses. The schedules vary widely in the penalties provided
and the extent to which they are mandated. Ten of the 11 permit agencies to impose harsher
penalties, including revocation in at least some circumstances. Nine of the 11 do not mandate
that any penalty be imposed, so the administrative agency can also decide to impose lesser or
no penalty for a violation. Oregon’s regulation lists specific aggravating and mitigating cir-
16







cumstances that may affect the penalty guidelines. Rhode Island mandates that a fine be im-
posed, but only provides the maximum amount of the fine, which does not increase after the
second violation. The time period for counting repeat offenses varies from one to five years.
New Mexico’s regulation is noteworthy. It imposes minimum, increasingly severe fines and
suspensions for the first two offenses in one year, and the third offense in one year leads to a
$10,000 fine and mandatory revocation. The third offense penalty can be imposed in cases
where the server is shown to have knowingly violated the SIP law.
Administrative penalties assessed against alcohol servers (in the 13 States that have SIP laws
and mandated server RBS training) vary across jurisdictions. Louisiana and Washington ap-
ply the same penalties to server permitees as licensees. Oregon establishes a lesser fine than
that imposed on licensees for a server’s first offense.
48
New Mexico imposes a separate
tiered penalty structure for servers: first offense – up to $500 fine or 30-day suspension; sec-
ond offense – up to $500 fine and/or 1-year suspension; third offense – fine, suspension
and/or revocation. Alaska appears to impose only criminal penalties on server violators; a
server criminal conviction can be the basis for administrative penalties imposed on the licen-
see.
Participation by licensed establishments in RBS programs may mitigate administrative penal-
ties. As noted above, Texas law provides the broadest mitigation, insulating licensees from
acts committed by their servers if the licensee successfully participated in the State’s volun-
tary RBS program. Louisiana prohibits the suspension or revocation of a license for the first
offense if the licensee establishes it is a responsible vendor on the State’s mandatory RBS
law. Pennsylvania law requires a reduction in fines if the licensee has successfully partici-
pated in the State’s voluntary RBS program. Agencies may reduce penalties in this manner
as a matter of internal policy without specific statutory authorization.
As this summary suggests, the laws of most States give wide latitude to administrative agen-
cies in determining penalties for SIP violations. Only a small number of State statutes and
regulations impose limits on the agency’s discretion or on mandatory, structured punishment
structures. Previous research found that agencies seldom if ever use their authority to revoke
a retail license for a SIP violation.
49
Some State agencies have established internal penalty
guidelines and others address SIP violations on an ad hoc basis. As discussed later in this re-
port, the lack of attention to penalties in such a large number of States probably reflects the
lack of enforcement. If cases are not brought before the administrative agency, there is no
need to develop formal penalty guidelines.
17


































Table 1: Tiered Administrative Penalties for Licensees
State Period Mandated 1
st
Offense 2
nd
Offense 3
rd
Offense 4
th
Offense Additional
AK
1
5 years no
45-day suspen-
sion
90-day suspen-
sion
Suspension or
revocation
Revocation permitted.
DC
2
See of-
fenses
no
$1,000 to $2,000
fine
$2,000-$4,000
fine (2 years)
$4,000-$6,000
fine (3 years)
Revocation
(4 years)
Revocation permitted.
LA
3
3 years no $50-$500 fine
$250 to $1,000
fine
$500 to $2,500
fine
Revocation or suspension permitted.
MS
4
1 year no
$500-$1,000 fine
and/or 3-month
suspension
$500-$2,000 fine
and/or 6-month
suspension
$2,000-$5,000
fine and/or sus-
pension or revo-
cation
Light beer and wine permit holders only.
Revocation permissible for other types of
permit holders.
NJ
5
2 years no
15-day suspen-
sion
30-day suspen-
sion
45-day suspen-
sion
Revocation Revocation permitted.
NM
6
1 year yes
$1,000-$2,000 &
1-day suspension
$2,000 to $3,000
fine & 7-day
suspension
$10,000 fine and
revocation
Knowingly provided: $10,000 fine, sus-
pension, or revocation permitted for sin-
gle violation
NC
7
None pro-
vided
no $500 fine $750 fine $1,000 fine
3-year suspension and revocation permit-
ted
OR
8
2 years no
$1,650 fine or 7-
day suspension
$4,950 fine or
30-day suspen-
sion
30-day suspen-
sion
Revocation
Aggravating//mitigating circumstances
listed
RI
9
3 years yes
Fine not to ex-
ceed $500
Fine not to ex-
ceed $1,000
Suspension or revocation permitted.
SD
10
2 years no $500 fine $700 fine $1,000 fine
WA
11
2 years no $500 fine or 5-
day suspension
$2,500 fine or 5-
day suspension
$5,000 fine and
10-day suspen-
sion
Revocation Aggravating circumstances can lead to
stiffer penalties.
1
AK ST § 04.16.180.
2
DC ST § 25-830; 23 DC ADC § 801; DC ST § 25-823.
3
LSA-R.S. 26:96
4
Miss. Code Ann. § 67-3-69.
5
N.J.A.C. 13:2-19.11, N.J.S.A. 33:1-31.
6
N.M. Admin. Code 15.10.61; NMSA 1978, § 60-6C-1.
7
N.C.G.S.A. § 18B-104.
8
Or. Adm. Rules § 845-006-0500; O.R.S. § 471.315.
9
Gen. Laws, 1956, § 3-5-21.
10
SDCL § 35-4-78.3.
11
WAC 314-29-020; WA ADC 314-29-015.
18








Enforcement Research Findings
The single most notable finding from the enforcement research is that SIP enforcement is rela-
tively rare. Lack of enforcement appears to be due to three main factors: cultural norms and
lack of political will; resource limitations; and statutory provisions. Other noteworthy findings
concern factors that affect (or would affect) enforcement practice where SIP enforcement occurs:
imposition of penalties; interagency collaboration; training; and use of technology.
1. Cultural norms and lack of political will
A culture that tolerates excessive drinking or that supports the idea that bars are appropriate
places for patrons to become intoxicated presents a challenge for effective SIP enforcement.
These cultural norms may be pervasive, not only among community members, but also within
the enforcement agencies. In such settings, it is unlikely that greater resources or training would
provide the key to stepped-up enforcement.
Lack of political will to create laws, regulations, or other enforcement policies also serves as a
barrier to SIP enforcement. Several interviews produced comments attesting to the belief that
SIP enforcement would not increase in the absence of the willingness of high-ranking policy-
makers and administrators advocating an increase. It was generally agreed that this lack of po-
litical will stems from unwillingness to establish any policy that that could be interpreted as hav-
ing an adverse impact on commerce (e.g., tourism industry, hospitality industry).
It is noteworthy that the State for which active SIP enforcement was evident, New Mexico, a
significant increase in enforcement was directly attributed to the governor’s decision to make
SIP enforcement a public safety priority. Due to this prioritization, recent rule changes in the
State increased fines and penalties for SIP violations by licensed establishments. The Alcohol
and Gaming Division (within the Department of Public Safety) must also report all licensing ac-
tions to the Office of the Governor. With this reporting, licensees found in violation have re-
ceived stiffer penalties than they had in the past. Thus, the New Mexico example lends support
to the reports from enforcement authorities interviewed in other States on the importance of po-
litical will to active SIP enforcement.
2. Resource limitations
While States and local enforcement agencies may desire a more coordinated and comprehensive
SIP enforcement program, lack of resources prevents this from happening. All States noted that
the bulk of alcohol enforcement work is directed to underage drinking enforcement and preven-
tion, often leaving any SIP enforcement program with inadequate resources.
SIP enforcement can be a time-consuming endeavor that yields minimal results in terms of po-
tential penalty, unlike minimum purchase age (MPA) retail compliance checks. MPA compli-
ance checks center on an alcohol purchase attempt by a youth and last only a few minutes. As
discussed in the legal research findings section above, many SIP laws have demanding eviden-
tiary requirements even for administrative violations. During SIP investigations, undercover
agents may need to spend several hours in an establishment and still not observe anyone suffi-
ciently intoxicated to bring administrative action, and because of the need for adequate evidence
and the potential physical altercations at least two (and sometimes more) agents may be assigned
19








to the case. When conducted (most often in response to a complaint), SIP enforcement often ties
up too many resources for too much time, given the many other demands on the agency.
Among the States interviewed, only one local agency, the Los Angeles Police Department
(LAPD), appears to have made sales to intoxicated people a priority matter due primarily to its
statistics on police calls for service for criminal incidents in close proximity to bars. LAPD’s
“Drunk Decoy” operations involve undercover officers posing as drunk patrons seeking to pur-
chase alcohol. These operations should not be confused with SIP investigations since they do
not result in citations (no intoxicated patron is involved). The purpose is to assess retail practices
at establishments that appear to violate the law and then to use the results of this assessment to
encourage and justify the need for the establishment’s participation in RBS training. Although
Drunk Decoy operations require less time than SIP investigations to conduct, they still require
considerable resources since two-agent teams are required for safety concerns.
The decision to increase SIP enforcement in New Mexico was also facilitated by data. Licensed
establishments produce 58 percent of DWI arrests in the State. This statistic was made possible
thanks to agency recordkeeping that collects place of last drink data on DUI arrest reports and
retains this data and other data on licensees in a format that lends itself to analysis. This and
complementary data analysis is presented to the Governor in an annual SIP report.
The prioritization of sales to intoxicated people in both New Mexico and Los Angeles can be re-
lated back to resources for a different purpose. Data collection and recordkeeping link to any
jurisdiction’s ability to document the need for SIP enforcement. In the absence of resources to
collect meaningful data and maintain such data in useful formats, SIP enforcement remains a low
priority. For example, data collection in Baton Rouge is quite basic and maintained largely in
paper format. Moreover, statistical data is generally kept in a simple spreadsheet with little, if
any, data analysis conducted.
3. Statutory provisions
Certain legal barriers impact enforcement efforts. As discussed in the legal research findings
section above, if a SIP violation requires proof of certain elements that are difficult to corrobo-
rate, then enforcement agencies are likely to forgo enforcement. In Oregon, for example, seller
knowledge of patron intoxication at the time of continued service is an element of the State’s
law. This has proven to be a barrier to enforcement since enforcement administrators recognize
that this “mental state” element can be difficult to prove. Conversely, States that do not include
any mental state element in the law establish the lowest burden of proof and are less likely to en-
counter legal challenges. Consequently, States with laws that do not require proof of server’s
mental state are more conducive to enforcement.
The New Mexico SIP law employs a negligence standard, permits indirect evidence as a basis for
finding a violation, and creates a rebuttal presumption that a person with a BAC of .14 or higher
within an hour of being served was obviously intoxicated at the time of service. These legal re-
forms overcome many of the barriers to enforcement found in the laws of other States. Its im-
plementation has encountered a significant barrier, however. Some enforcement agents have mis-
interpreted the regulation to mean that additional evidence beyond the BAC reading is not neces-
sary. This is not the case. The regulation creates only a rebuttal presumption, and it should be
20




















assumed that licensees will provide evidence that despite the BAC level, the patron was not visi-
bly intoxicated at the time of sale. The regulation anticipates this by introducing the BAC pre-
sumption with the phrase, “In addition to other commonly recognized tests of intoxication.” It is
critical that enforcement personnel collect additional evidence of visible intoxication. This points
to the need to train those charged with enforcing the law regarding proper techniques and inter-
pretations of relevant legal provisions, a topic addressed below.
4. Penalties as a behavior change incentive
States reported that adequate civil penalties for violators of SIP laws could provide deterrence for
repeat behavior. Frequently, however, other penalties are crafted for licensees charged with a
violation either through negotiated pre-hearing settlements or as a condition to be met in order to
avoid suspension or other disciplinary action against the licensee. In other instances, for exam-
ple in Texas, a licensee is immune from penalties if the server or seller received RBS training.
In New Mexico, stiff penalties appear likely to serve as
The Effects of Increased Penalties
an effective deterrent for licensees. (See New Mexico
for Licensees
Case Study later in this report.) Administrative
New Mexico imposes license revocation
penalties for licensees and servers/sellers follow a
for establishments that violate the
graduated approach, with a fine and suspension of
State’s SIP law three times within a 12-
alcohol license/server certification possible for even a month period. Since these increased
first offense.
penalties went into effect, six establish-
ments find themselves facing license
revocation.
5. Interagency collaboration
The responsibility for alcohol law enforcement differs
An establishment owner is entitled to a
from State to State. A few States rely solely on the hearing with the Department of Regula-
State ABC department, other States parse out
tion and Licensing’s Alcohol and Gam-
ing Division. If convicted, the license
enforcement efforts among local agencies, and still
will be revoked and the license holder
others may coordinate efforts between both local and
will not be allowed to sell or transfer the
State agencies. Drawing from the underage drinking
license. In addition, a licensee could be
enforcement model in many States, a coordinated effort
fined as much as $10,000.
appears to provide the most comprehensive and
organized structure for SIP enforcement.
The California ABC provides partial funding to LAPD’s Drunk Decoy program, and has shared
information about the program with other local enforcement agencies in the State. The agency
also disburses funds to local law enforcement agencies through its Grant Assistance Program or
“GAP” grants that focus on increasing enforcement of alcohol beverage laws, with a special em-
phasis on underage drinking laws. The training conducted for GAP grantee agencies includes
tactics for conducting SIP enforcement, and as a result of this training, five other agencies in the
State have begun implementing SIP enforcement activities, (e.g., Drunk Decoy operations, un-
dercover SIP investigations).
While Baton Rouge ABC does not focus specifically on SIP enforcement, there appears to be an
excellent working relationship between the agency and the Louisiana Office of Alcohol and To-
bacco Control, the Baton Rouge Police Department and the East Baton Rouge Parish Sheriff’s
Department on underage drinking enforcement. This multi-agency collaborative model repre-
21








sents an ideal approach for conducting SIP enforcement operations if the political will and other
factors existed.
6. Proper training
Effective SIP enforcement requires specialized training for enforcement officers. It is important
to understand the burden of proof required to establish “intoxication” and to collect sufficient
evidence to establish each element of the State’s SIPS law. New Mexico officials noted that
more training is needed on collecting evidence despite the .14 g/dL BAC presumption.
Training on SIP enforcement is required for all law enforcement agencies that receive GAP
grants from the California ABC. It is noteworthy that even though the GAP program emphasizes
underage drinking enforcement, a few GAP grantee agencies have decided to use some funding
to conduct SIP-related enforcement activities after receiving SIP enforcement training.
7. Use of technology
Interview data indicates that greater use of technology would facilitate SIP enforcement. Port-
able breathalyzers can be of tremendous utility in States where statutes do not require that offi-
cers observe actual sales of alcohol to an intoxicated person, as in New Mexico. Another desired
use of technology involves videotaping an intoxicated patron at time of arrest for use as evi-
dence. As one interview respondent noted, 30 seconds of videotape makes a powerful Statement
that is much more difficult to challenge than verbal testimony by an officer. Such footage can
also help to meet evidentiary requirements that require the prosecution to demonstrate that serv-
ers/sellers should have known or had reason to believe that a patron was intoxicated or that a
“reasonable person” would have detected intoxication.
In the section that follows, three case studies of SIP law enforcement practice follow. As stated
previously in this report, these case studies are based on qualitative data gathered through semi-
structured interviews with two key informants in each State. The States selected for the case
studies reflect different levels of SIP enforcement practice, ranging from little enforcement to
regular, high-profile enforcement.
22










CASE STUDY: BATON ROUGE, LOUISIANA
City of Baton Rouge Office of Alcoholic Beverage Control
The Office of Alcoholic Beverage Control and Gaming Enforcement licenses and regulates all
businesses and individuals in East Baton Rouge Parish who sell, serve, or dispense alcoholic
beverages. In an effort to maintain compliance with the State laws, all businesses are routinely
inspected by ABC investigators and all complaints are investigated.
There are approximately10 full-time employees in the Office of ABC and Gaming Enforcement,
of whom 3 serve as alcohol enforcement agents. When necessary, other investigators in the of-
fice assist with alcohol enforcement work. Nearly all of the agency’s resources (an estimated
95%) are devoted to background investigations for applicants for alcohol permits (i.e., licenses)
and dealing with underage sales/possession.
Applicants for alcohol licenses are required to attend RBS training conducted by the office be-
fore the license will be granted. Licensees who violate the State SIP law are subject to discipli-
nary action and may have their licenses suspended or revoked. When cited for a violation, a li-
censee is entitled to a hearing. This hearing is typically held before the agency bringing the
charge (State or local), but may be cited by both agencies if there are particularly aggravating
circumstances.
The Problem of Alcohol Sales to Intoxicated People
The State and local enforcement authorities interviewed for this case study did not consider sales
of alcoholic beverages to intoxicated people a significant problem in the city; however, the en-
forcement authorities did believe that there were problems associated with alcohol consumption
by college students in the parish. These problems include impaired driving, assault, vandalism,
and other acts of irresponsible behavior.
SIP Enforcement
Investigations into the sale of alcohol beverages to intoxicated people can be conducted by either
ABC investigators or local police department officers. During investigations, undercover
agents/officers working as a team enter and remain in a licensed alcohol establishment for a pe-
riod of time (often several hours) to observe server or seller practices. An establishment em-
ployee who serves or sells alcohol to an intoxicated person may be criminally cited for the sale
by the undercover officer. In addition to issuing the criminal citation, the undercover officer will
also refer the case for administrative action.
Enforcement of the State’s SIP laws is not perceived to be a priority concern for the city’s en-
forcement agency, and when such enforcement occurs, it is in response to complaints about nui-
sance establishments or situations involving an intoxicated person so inebriated that he is an im-
mediate threat to himself or others.
According to the individuals interviewed for this case study, two reasons account for the “low
priority” status of SIP enforcement. First, many Louisiana residents have long-standing tradi-
tions around drinking and partying, with a “let the good times roll” attitude pervading daily life
in many parts of the State. The second reason cited by the interviewees is a lack of political will
23











to create enforcement policies that could have an adverse impact on tourism and the hospitality
industry.
In spite of these barriers, the officials interviewed for this case study believed that if more fund-
ing were made available, SIP enforcement would increase. It was speculated that such enforce-
ment would be used to pay overtime costs for officers to conduct SIP investigations targeting the
establishments frequented by college students.
While the Baton Rouge ABC does not focus specifically on SIP enforcement, it is clear that its
staff communicates and coordinates enforcement operations and initiatives with other agencies
such as the Louisiana Office of Alcohol and Tobacco Control, the Baton Rouge Police Depart-
ment, and the East Baton Rouge Sheriff’s Department. These agencies have formed a task force
to address underage drinking, and coordination efforts appear to be focused on this issue.
Financial and other resource constraints on law enforcement agencies in general were noted as
contributing to at least two enforcement-related issues. The level of collaboration among local
agencies is sometimes at the mercy of funding. For example, there was a period of time during
which the East Baton Rouge Sheriff’s Department had to withdraw from the task force on under-
age drinking, and this temporary departure affected the level of active enforcement in this area.
Financial constraints also contribute to the State of records maintenance for the agency. Records
maintenance is basic, with many paper documents awaiting imaging before storage. Statistical
information is generally kept in basic spreadsheet software with very little, if any, analysis con-
ducted. For example, the total number of arrests for a specific period of time can be calculated,
but there is no way – short of searching by hand – to ascertain how many charges were made for
a specific arrest.
Prosecution of SIP Cases
Louisiana’s SIP law holds retail alcohol permit holders (i.e., licensees) and their employees li-
able for selling or serving any alcoholic beverage to an intoxicated person. Violations are sub-
ject to both criminal and civil penalties. Criminal penalties may include a fine of not less than
$100 and not more than $500, imprisonment for not less than 30 days and not more than 6
months, or both a fine and imprisonment. Civil penalties may include suspension or revocation
of a server’s permit or a fine. Criminal prosecution of SIP cases is rare.
According to the officials interviewed for this case study, the Louisiana SIP statute is not bur-
densome. It does not include a provision addressing the mental state of the seller of alcohol, and
successful prosecutions would simply have to prove that sale or service of an alcoholic beverage
to a visibly intoxicated person occurred. In the few SIP cases that are pursued annually, the key
element of evidence involves an undercover investigator/agent’s observation of the sale or ser-
vice of alcohol to a patron displaying signs of intoxication (slurred speech, lack of coordination,
glassy eyes, etc.). As reported by agency officials, ideally the observation of the sale is sup-
ported by a procured sample of the beverage served (for analysis), but other evidence can estab-
lish that the product is an alcoholic beverage; for example, statements from the intoxicated per-
son or server, viewing the bar tab, and the observation of the investigator/agent as to the color,
smell, etc., of the product.
24





































When a permittee is charged with a SIP violation, an
administrative violation report is submitted to the ABC
Board for processing. The board will docket the case for
hearing if not settled beforehand through negotiated
settlement or payment of the fine according to a schedule.
The adjudication process can take as few as 10 days if the
fine is paid and the hearing is waived. If a hearing is
docketed it may take 2 to 3 months. Cases may be
appealed to a local court. The officials interviewed for
this case study reported that the hearing process works
fairly well.
Key Findings
Louisiana’s SIP law and SIP enforcement includes
several noteworthy elements:
•  State law does not impose a standard on the
mental state of the seller/server of alcohol at the
time of sale/service to the intoxicated person.
This is advantageous to prosecution in that
seller/server knowledge of patron intoxication is
not required.
•  The State employs a graduated approach to
sanctioning licensees whose establishments
violate the law. These graduated penalties are
based on a 3-year time period initiated at the time
of the first violation.
Administrative Penalties for Permit
Holders
Administrative penalties for violations
include the possibility of permit suspen-
sion or revocation. In lieu of suspen-
sion or revocation, fines may be im-
posed according to the schedule below.
•  1
st
offense: Fine of not less than
$50 and not more than $500.
•  2
nd
offense within 3 years of 1
st
violation: Fine of not less than
$250 and not more than $1,000.
•  3
rd
offense within 3 years of 1
st
violation: Fine of not less than
$500 and not more than $2,500.
Permit suspension or revocation is not
possible for a first offense or if the per-
mit holder is deemed a “responsible
vendor” as indicated by certification of
his/her participation and of the partici-
pation of his/her employees in a State-
approved RBS training program, and
the maintenance of certification.
The few SIPS cases that are pursued
generally result in a $250 fine for a first
violation unless there are aggravating
circumstances (e.g., sale to an intoxi-
cated minor). Subsequent violations
produce harsher penalties.
•  SIP enforcement is weak due to cultural attitudes regarding drinking and lack of political
will to enact policies that are perceived to have an adverse impact on the hospitality in-
dustry and tourism.
•  SIP investigations that do occur are in response to complaints, and such cases often result
in fines (following the predetermined penalty schedule). These fines are often on the
lower end of the allowable range.
The law enforcement authorities consulted for this case study were in agreement that alcohol
sales to intoxicated people in Louisiana was not a significant problem in the city in general, but
they did believe the problem exists, particularly among college students. Perhaps not surpris-
ingly, they recognized that the chief barrier to implementing greater enforcement was lack of fi-
nancial resources. Given that the law is relatively favorable to the prosecution of cases, it is un-
fortunate that greater support for enforcement of SIP laws is lacking.
25














CASE STUDY: CALIFORNIA
The California Department of Alcoholic Beverage Control
The California Department of Alcoholic Beverage Control Administration (CABC) is
is a State agency charged with overseeing the provisions of the California Alcoholic Beverage
Control Act. Its mission is to meet its responsibilities in a manner that fosters and protects the
health, safety, welfare, and economic well-being of State residents.
There are approximately 77,000 alcoholic beverage licensees in California. CABC employs 165
field investigators based at 24 field offices throughout the State to enforce State alcohol laws.
Investigators are sworn peace officers empowered to investigate and make arrests for violations
of the Business and Professions Code that occur on or about licensed premises.
Licensees who violate applicable State laws or local ordinances are subject to disciplinary action
and may have their licenses suspended or revoked. These licensees are entitled to a hearing be-
fore an administrative law judge and an appellate process to the California Supreme Court.
The Problem of Alcohol Sales to Intoxicated People
According to both the State and local enforcement authorities interviewed for this case study, the
sale of alcoholic beverages to intoxicated people in California is a problem that merits greater
attention. One indicator of this need is police calls for service to bars in response to assaults,
vandalism, and public indecency complaints. Other indicators include DWI arrests, traffic
crashes and fatalities, sexual assaults, and cases of domestic violence.
SIP Enforcement
Investigations into the sale of alcohol beverages to intoxicated people can be conducted by either
CABC investigators or local law enforcement department officers. During investigations, under-
cover agents/officers enter and remain in a licensed alcohol establishment for a period of time in
order to observe server or seller practices. An establishment employee who serves or sells alco-
hol to an intoxicated person will be criminally cited for the sale by the undercover officer. In ad-
dition to issuing the criminal citation, the undercover officer will also refer the licensee for ad-
ministrative action.
Enforcement of the State’s SIP laws is not perceived to be a priority concern for State policy-
makers and administrators. Chief among the reasons for this is the agency’s emphasis on en-
forcement of underage drinking laws due to Federal grant funding for such work from the U.S.
Department of Justice. It was also noted that the sometimes time-consuming nature of SIP inves-
tigations and the evidence requirements for successful prosecution of SIP cases may also hinder
enforcement administrators’ desire to engage in proactive SIP investigations, particularly in light
of the CABC’s limited resources.
The State official interviewed for this case study affirmed that if more funding and other re-
sources were made available, SIP enforcement would increase. He indicated that State investiga-
tors would be required to conduct more on-premise and off-premise establishment visits. In ad-
dition, local agency recipients of CABC grants for enforcement would be required to conduct
SIP investigations in addition to underage drinking law enforcement operations. Using the level
26
















of Federal support for underage drinking enforcement as a guide, it was estimated that approxi-
mately $250,000 would be necessary to generate noticeable levels of increased SIP law enforce-
ment throughout the State.
Special Programs: LAPD’s Drunk Decoy Operations
The Los Angeles Police Department does engage in operations to address sales to intoxicated
patrons at licensed establishments. LAPD’s “Drunk Decoy” operations are conducted by the de-
partment’s Vice Unit, and they are supported in part by CABC. Drunk Decoy operations involve
an undercover police officer impersonating an intoxicated person seeking to purchase an alco-
holic beverage.
Drunk Decoy operations were started in 2003 in response to problems resulting from intoxicated
people in the vicinity of alcohol establishments. LAPD hoped to use the operations to generate
retailer participation in the responsible vendor program offered by the department.
During an operation, if bar staff sells to the undercover officer, the sale is reported to the
bar/store manager who is then offered an opportunity for bar staff and management to undergo
training. Establishments that decline the offer are monitored more closely. Citations are not is-
sued for alcohol sales to undercover officers since a true violation of the law did not occur. Ac-
tions against the establishment (e.g., fine, license suspension) are not taken for the same reason.
Repeat violators of Drunk Decoy operations are not sanctioned in any way.
Although the operations do not result in any enforcement action against alcohol servers, the pro-
gram is perceived to be effective in changing retail practices and reducing sales to intoxicated
patrons. The program has achieved SIP compliance rates as high as 90 percent on some of its op-
erations, which shows significant improvement from pre-program compliance rates of 40 to 50
percent.
Since LAPD began implementing its Drunk Decoy operations, five other jurisdictions in the
State have begun conducting similar operations. CABC coordinates with these other local agen-
cies during their Drunk Decoy operations, arranging for agency training for local law enforce-
ment officers on SIP enforcement operations and SIP investigations.
Prosecution of SIP Cases
California’s SIP law holds “any person” liable for selling or furnishing an alcoholic beverage to
an “obviously intoxicated” person. Violations of the law are punishable as a misdemeanor crime
that could result in not more than 6 months in jail, a $1,000 fine, or both. According to agency
guidelines, sales of alcohol to an intoxicated person could also result in a fine, license suspen-
sion, and/or license revocation for the holder of the establishment’s liquor license. The State and
local authorities interviewed for this case study consider California’s SIP law adequate, but they
noted that criminal cases are rare.
In order to successfully prosecute SIP cases against a licensee, CABC investigators must docu-
ment multiple indicators of intoxicated behavior in order to meet the “obvious intoxication”
standard. They must also establish that the behavior was in view of the server/seller. Physical
evidence of the alcohol consumed is not required; an observation of a beer bottle or statements as
27

























to the type of alcohol that was consumed is adequate for prosecution. Per agency guidelines, a
diagram of the premises identifying the locations of the patron, undercover officers, and bar staff
is desirable. Evidence of the patron’s BAC level is admissible, but not required.
When a SIP case is presented for an administrative
Administrative Penalties for
hearing, CABC attempts to settle the case following the
Licensees
agency’s penalty guidelines. If no agreement is reached,  Administrative penalties are imposed
the case will be referred to an administrative law judge  
according the CABC guidelines that
employ a graduated approach to sanc-
who will issue a ruling. If it is determined that a violation
tions based on a 36-month period
occurred, the judge will forward a recommended sanction
commencing at the time of the first
to the CABC director who can approve or modify the
violation.
proposed sanction. Licensees may appeal the penalty to   • 1
st
violation: 15-day license sus-
the ABC Appeals Board and, at the next level, to the  
pension or a fine equal to 50 per-
cent of the establishment’s aver-
District Court of Appeals. If not settled before the hearing,
age daily alcohol beverage sales
the administrative hearing process lasts approximately six
for 15 days, with a maximum fine
months.
of $3,000 possible.
•  2
nd
violation: License suspension
Key Findings  
for a period of time determined by
the CABC Director.
California’s SIP law and SIP Enforcement does contain
several noteworthy elements:
•  The State does not impose a standard on the mental state of the provider of alcohol. That
is, a successful prosecution of a SIP case does not require proof that the seller or server
knew that the patron was intoxicated. Rather, the case must prove that the intoxicated
person demonstrated clear signs of intoxication that were evident to the server/seller.
•  Through CABC guidelines, the State does appear to attempt to apply stiff sanctions to li-
censees whose establishments violate the law. Moreover, the State employs a graduated
approach to penalties, facilitating the likelihood that repeat violators will be punished se-
verely. The possibility of a 15-day suspension or a significant fine (i.e., 50% of average
alcohol beverage sales for a 15-day period) for a first-time violation is not insignificant
and a strong incentive for changing retail practices. Moreover, the recommended license
suspension for second violations within a 3-year period may be appropriate to deter addi-
tional violations.
•  SIP law enforcement is generally limited Statewide although there is a perceived need for
greater enforcement. LAPD’s Drunk Decoy operations, while not true enforcement, rep-
resent an attempt to “crack down” on illegal sales of alcohol though clerks and establish-
ments can not be cited for breaking the law.
•  Weak enforcement of SIP laws results primarily from lack of sufficient resources to
cover the costs of proactive investigations. Agency resources for enforcement are geared
primarily to the State’s underage drinking laws.
28



Conclusion
The law enforcement authorities consulted for this case study were in agreement that SIP viola-
tions in California are a problem that merits greater attention from policymakers and enforce-
ment administrators. Citing law enforcement calls for service and criminal incidents as the
documentation of the need for greater enforcement, they recognized that the chief barrier to en-
forcement was lack of financial resources and, perhaps, lack of understanding about the relation-
ship between alcohol sales to intoxicated people and crime. Given that the State law and
CABC’s approach to sanctioning licensees are favorable to prosecution, it is unfortunate that
greater support for enforcement of SIP laws (financial and otherwise) is lacking.
29














CASE STUDY: NEW MEXICO
Division of Special Investigations and Division of Alcohol and Gaming
In 1987, the New Mexico Department of Alcoholic Beverage Control was abolished, and the
Department of Public Safety’s Special Investigations Division was charged with authority over
all investigations and enforcement activities required by the Liquor Control Act. A separate State
agency, the New Mexico Department of Regulation and Licensing’s Alcohol and Gaming Divi-
sion, is responsible for all licensing of alcohol and gaming establishments, as well as denials,
suspensions, and revocations.
There are approximately 5,500 alcoholic beverage licensees in New Mexico. The Special Inves-
tigations Division employs 37 enforcement agents, any of which may be called upon to partici-
pate in a SIP investigation in addition to other types of special investigations within the agency’s
mandate.
Licensees who violate the State SIP law are subject to perhaps the most severe penalties for vio-
lations in the country; license suspension is a certainty for a first violation. The Alcohol and
Gaming Division is responsible for administering penalties and conducts hearings for all licen-
sees and servers who contest citations.
The Problem of Alcohol Sales to Intoxicated People
According to the State-level officials interviewed for this case study, sales of alcoholic beverages
to intoxicated people are considered a significant problem in New Mexico by many, including
Governor Bill Richardson. Enforcement statistics on DWI arrests, traffic crashes, assaults, sex-
ual assaults, domestic violence, and disturbances were cited as evidence of the problem.
SIP Enforcement
SIP enforcement is a priority in the State because of the Governor’s engagement in the problem
of alcohol-impaired driving. In light of estimates that up to 50 percent of people driving under
the influence of alcohol had their last drinks at licensed establishments, the governor has sup-
ported increased SIP enforcement and rule changes that have increased penalties for violations of
the State’s SIP law. The Governor also requires that all license actions be reported to his office.
Investigations of SIP violations are generally conducted by the Special Investigations Division.
During investigations, undercover agents/officers may enter and remain in a licensed alcohol es-
tablishment for a period of time in order to observe retail practices. An establishment employee
who serves or sells alcohol to an intoxicated person may be cited criminally or administratively
by the undercover officer. In addition to issuing the server citation, the undercover officer will
also cite the licensee.
New Mexico’s statute permits a .14 BAC as presumptive evidence of intoxication, so observa-
tion of actual sale or service by a clerk or server is not required by law. Consequently, investiga-
tors may cite licensees for violations after registering BAC levels of intoxicated individuals who
emerge from establishments.
30















Although SIP enforcement has achieved “high priority” status within the enforcement agency,
additional resources are needed. The Special Investigations Division reported that it has several
openings for enforcement staff that, if filled, would allow more staff to be dedicated to SIP in-
vestigations. In addition, the increase in enforcement has generated a significant increase in
cases before the licensing authority, the Alcohol and Gaming Division. This agency is in need of
an additional hearing officer.
Special Programs
The Department of Public Safety’s Special Investigations Division implements two programs
aimed at reducing sales to intoxicated people.
Source Investigation Program
Source investigations are conducted to identify the "source" of alcoholic beverages that have
been sold or served unlawfully; provided to minors; provided to intoxicated people; provided
to people involved in serious incidents and vehicle crashes; or provided to those arrested for
DWI. The primary goal of a source investigation is to determine the identity of the seller,
server or provider of alcoholic beverage, and to determine whether or not the provider was
acting within the law. If the alcoholic beverages have been sold illegally, the Special Inves-
tigations Division will prepare and file appropriate criminal and administrative charges
against the provider. Source investigations have been an ongoing activity for the Special In-
vestigations Division for many years.
The Source Investigation Program relies considerably on coordination with the State Police
and local law enforcement agencies. These other agencies provide information about estab-
lishments that sell alcohol to intoxicated people, provide place of last drink data from arrest
reports, and serve as back-up assistance for the agents conducting SIP investigations. This
coordination was described as working very well.
The Source Investigations Program is perceived to be a successful one. The number of cases
being referred has steadily increased due to the overall emphasis on reducing impaired driv-
ing within the State. Due to recent increases in penalties, however, almost all cases are now
being contested by licensees. (In the past many licensees negotiated settlements with the
agency.) This higher volume of SIP cases is placing a greater burden on the Division of Al-
cohol and Gaming, with hearing officers unable to complete the hearing process as quickly as
they would prefer.
Mobile Strike Team
Special Investigations Division’s Mobile Strike Team is a four-person unit dedicated solely
to conducting SIP investigations. It was established in 2005 to address problem establish-
ments throughout the State that were known to produce public safety problems. The work of
the Mobile Strike Team activities has also contributed to more administrative citations
against servers and licensees.
The agency has recognized some challenges in operating the Mobile Strike Team. As a four-
person unit, the work keeps officers “on the road” in a big State a great deal, and this has
proved challenging for officers’ family lives. Officers assigned to the unit tend to leave the
31





























team when other openings within the Special Investigations Division post. It was felt that
this problem could be addressed with the filling of the vacant positions. More staff would al-
low for the creation of two teams.
Prosecution of SIP Cases
The New Mexico SIP statute law holds “any person” responsible for “selling or serving alcoholic
beverages or procuring or aiding in the procurement of alcoholic beverages for an intoxicated
person if the person selling, serving, procuring or aiding […] knows or has reason to know” that
the person is intoxicated. Violations are subject to both criminal and civil penalties. Criminal
penalties may include a fine of not more than $1,000, imprisonment for less than one year, or
both. Civil penalties may include a fine and license suspension or revocation. Prosecutions
against license holders are generally administrative, although in the most heinous breaches of the
law criminal charges may sometimes be brought.
The law enforcement official interviewed for this case
Administrative Penalties for
study believed the wording of the New Mexico SIP statute
Licensees/Permitees
has posed some difficulties securing convictions; but added
Administrative penalties for violations
that these difficulties could be surmounted. The .14 BAC follow a graduated approach based on
presumption of intoxication has led to some evidentiary
the number of offense within a 12-
month period.
problems. In the field, investigators have at times relied on
• 1
st
offense: $1,000 to $2,000 fine
this element to prove intoxication when the law clearly
and suspension of all alcohol
States that the presumption is a supplement to “other
sales for 1 day.
commonly recognized tests of intoxication.” Consequent-
• 2
nd
offense: $2,000 to $3,000 fine
ly, the division has recognized the importance of providing and 7-day license suspension.
better training to investigators on how to write descript- • 3
rd
offense: $10,000 fine and li-
ively about intoxication level on reports in the absence of a
cense revocation.
change in the language of the law. However, it should be
noted that one of the officials interviewed for this case study believed that the law should be re-
written to omit the .14 BAC presumption element completely because of the misunderstanding it
generates.
Preferred evidence for prosecution was reported to be the following: observation of an intoxi-
cated person; service of alcohol to the intoxicated person; alcoholic content of beverage served;
BAC level of intoxicated person, results of additional tests of intoxication, and videotape footage
of intoxicated person’s behavior at time of citation. Cases
Administrative Penalties for
may also be brought for situations in which investigators
Sellers/Servers
observe an intoxicated patron within one hour of his/her
Administrative penalties for violations
last drink (e.g., emerging from a licensed establishment).
follow a graduated approach based on
the number of offense within a 12-
Preferred evidence in such instances would include patron
month period.
verification of place of last drink and type of alcohol sold,
• 1
st
offense: Fine of up to $500,
BAC test result of .14 or higher, and videotape footage of
30-day suspension of sever certi-
the signs of intoxication.
fication, or both
• 2
nd
offense: Fine of up to $500,
The administrative hearing process has encountered a 1-year suspension of server certi-
process-related difficulty stemming from the recent in-
fication, or both.
creases in penalties for SIP law violations that include the  
• 3
rd
offense: Fine, suspension, or
revocation of server certification.
certainty of license suspension – even for a first violation.
32
















These stiffened penalties have caused more license holders to challenge cases, and the adminis-
trative hearing process can now last from two to six months from initial citation to final resolu-
tion; although some cases have taken as long as a year to process, with the cases eventually dis-
missed. As mentioned previously, the caseload increase has made the Division of Alcohol and
Gaming conclude that funding to support an additional hearing officer is needed in order to proc-
ess cases in well under six months.
In spite of the growth in challenges to citations, the stiffened penalties are perceived to be a de-
terrent to future citations for license holders; however, the increased penalties for servers/sellers
are not considered an effective deterrent. Servers were described as having a “hard time” refus-
ing service due to patron intimidation of servers/sellers.
Key Findings
The New Mexico case study of SIP enforcement practices does offer several important findings.
•  The political will of the most senior elected official in the State, Governor Bill Richard-
son, has been crucial to SIP enforcement. The governor’s commitment to combating the
alarming number of alcohol-related traffic crashes and fatalities in the State has generated
unprecedented support and accountability for SIP investigation work, with the Division
of Alcohol and Gaming (the licensing authority) reporting all license actions to the Gov-
ernor’s office.
•  High-level support for enforcement has led to not only increases in SIP investigations but
the creation of a special unit, the Mobile Strike Team, which works to address SIP viola-
tions at known problem establishments throughout the State. The Mobile Strike Team
regularly collaborates with other law enforcement agencies (i.e., State Police, local police
departments).
•  Increases in SIP enforcement activity will have a negative effect on enforcement pro-
grams if there is not an adequate number of officers available to conduct enforcement. In
New Mexico, financial support for enforcement is present, but the enforcement agency is
understaffed due to position vacancies. The Mobile Strike Team that travels the State has
experienced high staff turnover due to the demands on investigators’ personal lives.
•  The State’s SIP statute has presented some challenges for law enforcement that indicate
that better law enforcement training is needed regarding evidentiary requirements of the
new law.
•  The State statute’s .14 BAC presumption may be viewed a useful tool for SIP enforce-
ment in that it does not require that officers observe the actual sale of alcohol to an in-
toxicated person. SIP enforcement investigations are costly in that they usually involve a
minimum of two undercover officers remaining in an establishment long enough to wit-
ness an illegal sale. The .14 BAC presumption relieves an agency from incurring the
kinds of expenses typically associated with undercover investigations.
33






•  Increases in penalties coupled with increased enforcement are likely to produce more
challenges to citations. The administrative adjudication process will experience process-
related difficulties as a result of these challenges if it is not adequately staffed to meet
greater demand for hearings.
Conclusion
New Mexico provides an excellent example of SIP law enforcement in practice. Enforcement
results from recognition of and willingness to address a serious alcohol-related problem: traffic
crashes and fatalities. Enforcement receives support from the highest level of State government,
the Office of the Governor, and this support includes financial support. Moreover, SIP enforce-
ment activity centers on a model in which collaboration with other enforcement agencies is inte-
gral. The adjudication process has experienced some challenges, but in light of the accountabil-
ity the licensing authority must demonstrate to the Governor’s Office, it is likely that these chal-
lenges will be addressed and sanctions for SIP law violations will be imposed. It does not appear
that the high level of SIP enforcement activity will diminish anytime in the near future.
34

















DISCUSSION AND BEST PRACTICE RECOMMENDATIONS
Five general findings stand out from this research:
1) Although SIP laws are commonly assumed to be similar across jurisdictions, in fact they
vary widely on several key variables, in many cases substantially weakening their appli-
cability. As discussed above and below, statutory provisions may establish strict eviden-
tiary requirements, their applicability to types of alcohol servers may be restricted, pro-
hibited acts covered may be restricted, and penalty provisions may be unstructured.
These variations can make prosecution more difficult and can discourage SIP enforce-
ment.
2) The laws are poorly drafted. In particular, most state provisions fail to distinguish be-
tween criminal and administrative proceedings and create uncertainty regarding eviden-
tiary requirements and penalties that will be imposed.
3)  There are multiple factors that contribute to the lack of SIP enforcement, including cul-
tural norms undermining support for the law and lack of resources. Law enforcement of-
ficials also reported that the legal variables identified in paragraph #1 above may also
contribute to the lack of enforcement attention.
4)  Some State enforcement officials noted that the current national emphasis on underage
drinking has resulted in directing a large percentage of the limited resources for alcohol
law enforcement toward operations focused on underage drinking. This has resulted in
fewer resources for other alcohol law enforcement priorities, including SIP enforcement.
5) Best practices exist in various States both in terms of legislative drafting and administra-
tion/enforcement.
Addressing Variation and Uncertainty Within Legal Statutes
Almost every State and the District of Columbia (except Florida, Nevada, and Wyoming) have
SIP laws that apply broadly to most alcohol retail licensees, and most, but not all States apply
their laws through both administrative and criminal proceedings. Although various terms are
used, States generally agree either explicitly in the law or through court interpretation that viola-
tions can only occur if the intoxication of the person being served was obvious or visible.
•  Defendants
Nearly one-third of the States do not apply their SIP laws to noncommercial servers, either
by not having criminal provisions or by limiting their applicability to licensees and their
staff. Although there are sound policy reasons to treat these two groups differently (dis-
cussed below), there does not appear to be justification to exempt noncommercial servers
from the law.
The standard appropriately applies to all servers of alcohol. Including both in the SIP provi-
sions reinforces the social norm that third parties have a shared responsibility to stop service
of alcoholic beverages to intoxicated people, whose intoxication impairs judgment and in-
35













creases the risk of impaired driving as well as other types of alcohol-related injuries and vio-
lence.
Legal Best Practice #1
SIP laws should be enacted in all States and they should apply to all servers and
sellers, whether in commercial or noncommercial settings.
• Intoxication definition
As noted above, States use various terms in their laws for obvious or visible intoxication. In
most cases, the terms are not defined in the SIP statutes and regulations, creating potential
uncertainty regarding their application and constitutionality. Case law research suggests that
the courts have consistently addressed these potential problems by applying their own defini-
tions that include the “obvious” or “visible” component of the prohibition. With these court
interpretations, the variations across States do not appear to be significant. Nebraska’s law
provides a non-inclusive list of signs of visible intoxication, offering additional guidance to
licensees, servers, and law enforcement officials. Providing non-inclusive lists of what con-
stitutes visible intoxication provides important guidance to law enforcement regarding what
evidence is required in order to establish a violation of the law.
Legal Best Practice #2
The definition of obvious or visible intoxication found in State SIP laws should
include a non-inclusive list of signs of intoxication that can be used as evidence.
•  Prohibited activities
An unexpected finding is the variation in the acts that are prohibited. The primary offense is
to sell, serve, or give alcohol to an obviously intoxicated person. Some State laws do not ex-
plicitly include actions other than selling, creating some uncertainty whether a non-sale trans-
fer is included.
At least 16 States also prohibit commercial servers from allowing intoxicated people to con-
sume alcohol on the premises without reference to the original service. If a server sees an in-
toxicated person consuming, he/she is required to remove the drink and ensure that the con-
sumption ceases. Some include in their law a provision that allows an intoxicated person to
remain or loiter on the premises. Note that these provisions do not apply to noncommercial
servers.
Previous research has not identified this critical additional prohibition in some SIP laws, and
their potential impact on service to intoxicated people and impaired driving has not been
studied. They appear justified as part of a commercial server’s responsibility to maintain a
safe premises and methods for doing so are routinely included in RBS training programs. On
the other hand, prohibiting servers from allowing intoxicated people to remain on the prem-
36











ises may have unintended consequences and violates basic premises of RBS training. The
primary goal should be to ensure that no harm occurs, either by providing safe transportation
or seeking law enforcement assistance. Allowing the person to stay on the premises will re-
duce the effects of intoxication while an appropriate intervention is devised.
Legal Best Practice #3
State SIP laws should explicitly include “gifts” and other non-sale exchanges and
should require servers to remove any alcohol being consumed by an obviously in-
toxicated person. Laws prohibiting servers from allowing intoxicated people to
remain or loiter on commercial premises should be reviewed to determine
whether they may inadvertently create unnecessary risks for public health and
safety.
•  Evidentiary requirements
As discussed in the findings section, evidentiary requirements typically differ between ad-
ministrative and criminal proceedings, reflecting the distinct purposes and functions of the
two legal forums. In the case of alcoholic beverage control generally and SIP laws specifi-
cally, the purpose of administrative rules and regulations is to insure safe and responsible
business practices on the part of retail alcohol licensees. In receiving their licenses, retailers
are granted a privilege to conduct business and are expected to take proactive steps to protect
the public. It is therefore reasonable for the State to enforce sanctions against the license
when such steps are not taken, with repeated violations potentially leading to revocation of
the retailer’s privilege of doing business. Administrative proceedings also have the advan-
tage of being relatively streamlined, with determinations made more swiftly than criminal
proceedings.
Evidentiary requirements for establishing a violation of the SIP laws should reflect this fun-
damental purpose of protecting public safety. Thus, for SIP laws, credible evidence that
visibly intoxicated people are being served or are allowed to consume at a licensed premise
should be sufficient to support a violation by a fact finder.
Criminal law also has as its purpose the protection of the public from harm. However, it
does so through determining individual guilt, and sanctions are imposed on the individual of-
fender that can result in loss of personal freedom. For these reasons, evidentiary requirements
are more demanding both in terms of what constitutes individual wrong-doing and the burden
of proof for the prosecution. For SIP laws, evidence of server malfeasance or at least negli-
gence is therefore typically required for a criminal violation.
Evidentiary requirements in SIP laws in general ignore this critical distinction. Many States
require proof of actual knowledge by the server that the patron is visibly intoxicated in both
criminal and administrative proceedings, a high standard that deters enforcement of the law
in an administrative context. Most State laws are simply silent on the issue, leaving it ulti-
mately to the State courts to make the final determination, creating uncertainty for law en-
forcement and administrative officials.
37










Many courts have held that indirect evidence of the illegal service is sufficient to support a
violation in administrative proceedings. New Mexico’s SIP regulation is unique in establish-
ing a rebuttal presumption that a patron with a .14 BAC within an hour of the service is visi-
bly intoxicated, thus allowing indirect evidence to support an administrative violation and
shifting the burden of proof to the licensee to present evidence that visible signs of intoxica-
tion were not present. This approach comports with the underlying purposes of the law and
increases the likelihood that licensees will perceive that violations will lead to relatively
swift, certain punishment.
Legal Best Practice #4
State SIP laws should establish explicit evidentiary requirements that differentiate
between administrative and criminal proceedings. For administrative proceed-
ings, the law should explicitly state that indirect evidence of illegal service is suf-
ficient to support a violation, and a rebuttal presumption that a patron with a .14
or higher BAC within an hour of the service should be established. Criminal pro-
ceedings should be held to stricter evidentiary standards.
•  Penalties
SIP laws generally do not address potential penalties for violations, relying instead on gen-
eral provisions that apply to a wide variety of crimes and administrative violations. The lack
of specificity gives administrative agencies, prosecutors, and judges wide discretion in de-
termining the appropriate punishment. In practice, many administrative agencies have estab-
lished penalty guidelines, either by regulation or through internal procedures. This shortcom-
ing in the SIP laws is in part the result of the lack of enforcement. With more violations be-
ing detected, administrative agencies would likely be more attentive to establishing clear
penalty guidelines. Nevertheless, the uncertainty regarding penalties undermines the effec-
tiveness of SIP laws.
As detailed in the Findings section, at least 11 States have formal, graduated or tiered admin-
istrative penalty structures, imposing harsher penalties for repeat violations, with the first
violation usually involving a small fine and license revocation imposed on the third or fourth
offense. This approach is recommended as a means to encourage licensee compliance and
adoption of RBS standards. The focus should be on repeat offenders who are of greatest risk
to public safety. Violations by licensees and their staff should be anticipated, and as long as
corrective action is taken and chronic violations are not occurring, harsher penalties are not
warranted.
Most States do not impose minimum penalties thereby lessening the perceived certainty that
a punishment will be imposed. New Mexico is a notable exception and can serve as a model
for other States.
38













At least 6 States use a similar, tiered approach for criminal penalties. Some States treat SIP
violations as petty offenses if there are no aggravating circumstances, which can streamline
the process and increase the likelihood that a penalty will be imposed.
When establishing a penalty schedule, attention should be placed on the time period for de-
fining repeat offenders, with longer time periods recommended to provide sufficient time for
enforcement agencies to conduct repeat enforcement operations, which are relatively expen-
sive and complex.
SIP laws have the potential to encourage the adoption of RBS practices, by rewarding licen-
sees that abide by them and imposing harsher penalties on those who do not. This can be
done through the use of mitigating and aggravating factors in determining penalties. SIP
laws will be more effective if RBS training is mandated, as is the case in 14 States. A com-
prehensive RBS law mandates training in appropriate service practices to prevent patron in-
toxication and to identify those who do become intoxicated. Successful participants receive
server permits, which are required to work in a licensed establishment. In States with man-
datory RBS programs, SIP laws should develop similar tiered penalty guidelines for servers
that lead to revocation of the server permit for repeat offenses.
Legal Best Practice #5
In accordance with deterrence theory, penalty guidelines in SIP laws should be
specific and certain. A tiered approach should be used for both administrative and
criminal offenses: first offenses should have relatively light penalties and repeat
offenders should anticipate a harsh penalty – for retail licensees, the potential loss
of their license to do business. Time periods for determining repeat offenses
should be at least five years. RBS training should be required as a sanction for
violating the law. Minimum penalties should be mandated at each tier of the pen-
alty schedule. A similar approach should be used for servers in States with man-
dated RBS training.
*******************************
Addressing the Challenge of Sufficient Resources for Enforcement
With the current emphasis on underage drinking enforcement nationally, many alcohol control
agencies are strapped for resources to attend to other types of alcohol enforcement. In many
States, the ABC is also responsible for such things as tobacco and gaming enforcement among
other specialized types of enforcement. Quite simply there is insufficient staff available to con-
duct SIP investigations. In light of this reality, it is clear that increasing SIP enforcement levels
will require changes not only within the law enforcement field but among others as well.
• Interagency collaboration
The responsibility for alcohol law enforcement varies across States. A few States rely solely
on the State ABC department, other States parse out enforcement efforts among local agen-
cies, and still others coordinate efforts between both local and State agencies. Drawing from
39













the underage drinking enforcement model that exists in many States, a coordinated effort ap-
pears to provide the most comprehensive and organized structure for SIP enforcement. One
helpful resource at the State level include NHTSA Law Enforcement Liaisons who work to
improve communication between State and local law enforcement agencies in an effort to
address the problem of impaired driving.
Partnerships across enforcement agencies are important in several respects. Alcohol-related
public safety problems are documented across several agencies, and communication among
agencies will enable better understanding of the local problem. Educating policymakers and
other decision-makers about the importance of SIP enforcement will be more effective if
conducted by law enforcement professionals from more than one agency. Last, SIP en-
forcement is an important yet time consuming investment in improving public safety, and
SIP enforcement is more feasible when the resource burden is shared across agencies.
Enforcement Best Practice #1
Enforcement agencies at State and local levels with responsibility for regulating
alcohol licensees and enforcing SIP laws should establish communication and col-
laboration on SIP enforcement.
•  Data collection and analysis
Adequate resource allocation to support SIP enforcement stems from documented evidence
that SIP law violations result in significant public safety problems and demands on law en-
forcement agencies. These problems and demands include alcohol-related traffic crashes, of-
ficer time addressing impaired driving violations, and calls for service to address other crime
and nuisance problems. Tracking the relationship between overservice of alcohol at licensed
establishments and these public safety problems will result in objective data to support in-
creases in the resources allocation to address SIP law violations.
For some law enforcement agencies, data collection and analysis may require nothing more
than tracking and perhaps mapping data that is already collected on law enforcement arrest
reports (e.g., DUI arrest reports) or tracked through other law enforcement documents such
as call for service logs. For other agencies, this will require modifying data collection tools
to generate information about possible overservice. At minimum, law enforcement data col-
lection instruments should solicit information about an arrestee’s place of last drink prior to
DUI arrest, an alcohol-related traffic crash, or other criminal consequence of alcohol con-
sumption.
Enforcement Best Practice #2
Agencies should collect and analyze enforcement data stemming from over-
service of alcohol.
40












•  Forging alliances with health agencies and advocacy groups
As documented in the findings section, SIP law enforcement is hampered in most States by
the lack of political will and adequate resources. It is not a priority among policymakers.
New Mexico offers an interesting exception to this general finding. The Governor has made
SIP law enforcement a high priority, resulting in more intensive enforcement efforts.
Building political will and resources requires developing alliances with groups across a broad
spectrum. Law enforcement agencies can partner with State and local health agencies and
citizen’s groups that have as part of their focus preventing impaired driving and other alcohol
problems, and promoting community health and safety. These groups can assist in educating
decision-makers and the general public about the harms posed by alcohol sales to intoxicated
people. Advocacy groups can also play an important role in educating the general public
about the importance of SIP enforcement. Data collection that documents the role of SIP
violations in community alcohol problems can be useful in this educational effort.
Enforcement Best Practice #3
Law enforcement agencies should establish partnerships or build upon existing
partnerships with local community groups and health agencies that are concerned
with impaired driving and other alcohol-related public safety and public health
problems. Such partnerships can help build political support among policymak-
ers for giving SIP law enforcement a higher priority and providing needed re-
sources for enforcement programs.
• Data-driven arguments for SIP enforcement
Resource allocation in law enforcement is driven by statistics. The current emphasis on un-
derage drinking was generated by greater attention being paid to objective measures on alco-
hol consumption by youth and the problems associated with this consumption. Policy change
on SIP enforcement, increased funding for SIP enforcement, and reallocation of resources
within agencies will all begin with educating policymakers and key decisions-makers. And
while community groups may stress the value of enforcement to such things as reductions in
injuries and fatalities and improvements in quality of life, law enforcement agencies are in
the best position to provide objective measures on the local costs and consequences of alco-
hol sales to intoxicated people. The economic costs of SIP violations, and the potential cost
savings of a vigorous education and enforcement program, should be included in this effort.
Enforcement Best Practice #4
Agencies should offer data-driven arguments to convince policymakers and deci-
sion-makers about the need for and value of SIP enforcement.
41















• Specialized training in SIP enforcement
SIP enforcement is not widely conducted and in order for any increase in enforcement activ-
ity to be effective, enforcement officers must receive specialized SIP enforcement training.
Such training must center on the State’s evidentiary standards for conviction, but also address
practical aspects of enforcement operations. Training should address: (1) using data to iden-
tify problem establishments; (2) conducting proactive and reactive investigations; (3) inter-
acting with licensees, managers, intoxicated patrons, and other patrons; (4) collecting evi-
dence; (5) making use of new technology; (6) issuing citations; (7) writing a comprehensive
report; and (8) preparing for the adjudication process. The National Center for Alcohol Law
Enforcement is one organization that provides this comprehensive training.
Enforcement Best Practice #5
Agencies should provide specialized SIP enforcement training for officers. Train-
ing should be State-specific to address the burden of proof required to establish
each element of the State SIP law.
• Making better use of technology
Videotapes of intoxicated patrons at time of arrest help to meet evidentiary standards that re-
quire the prosecution to demonstrate that servers/sellers “should have known” or “had reason
to believe” that a patron was intoxicated or that a “reasonable person” would have detected
intoxication. Portable breathalyzers can be of utility in States where statutes do not require
that officers observe actual sales of alcohol to an intoxicated person.
Enforcement Best Practice #6
Agencies should invest in greater use of technology, including training for law
enforcement in the proper use of such technologies to assist in enforcement and
prosecution. Videotapes and portable breath test results can produce powerful
evidence to supplement dispassionate agent testimony about speech, motor
movements, and odor if captured in accordance with National and State protocols.
• Additional funding for SIP enforcement
It can be argued that national attention to underage drinking stems from supplemental fund-
ing for enforcement through the Enforcing Underage Drinking Laws program block grant to
States. This program requires reporting on enforcement to the funding agency, the U.S. De-
partment of Justice. At a State level, concern about alcohol-related crashes and fatalities in
New Mexico spurred the Governor’s decision to increase funding for SIP enforcement and
require reporting on State enforcement efforts to his office. It is not likely that standard SIP
enforcement practices will be increased in the absence of increased funding and political
support for such enforcement.
42










Enforcement Best Practice #7
Dedicated funding for SIP enforcement should be made available to State and
local law enforcement agencies with funding sources requiring that enforcement
agencies report back to them on the results of SIP enforcement activity. Dedi-
cated funding and accountability have been demonstrated to be key elements in
active and successful SIP enforcement programs.
• Alternatives to traditional SIP enforcement
In light of limited resources to conduct undercover SIP enforcement investigations, alterna-
tive approaches for addressing suspected SIP violations are possible. Drunk-Decoy-type op-
erations involve undercover officers posing as drunk patrons seeking to purchase alcohol.
Although these operations require less time to conduct than traditional SIP investigations,
they do require two-agent teams for officer safety reasons. Dedicated police units such as
New Mexico’s Mobile Strike Team invest resources in maintaining a small staff of State-
level law enforcement investigators who have received specialized training in SIP enforce-
ment. These investigators travel throughout the State and collaborate with local police de-
partments to conduct undercover SIP operations at known problem establishments.
Enforcement Best Practice #8
Agencies should explore other approaches to address SIP law violations. While
Drunk-Decoy-type operations do not result in citations for sellers or servers who
provide alcohol, they do serve to communicate to retailers that law enforcement
is attentive and monitoring their serving practices, and they can justify the need
for establishments to participate in RBS training. Dedicated enforcement units
ensure that that law enforcement officers with the proper training can be de-
ployed to address know problem establishments, and, if inter-agency collabora-
tion is incorporated into their work, dedicated unit staff may serve to train other
law enforcement personnel in SIP enforcement strategies and techniques.
43







CONCLUSION
With over 85,000 people dying each year from alcohol-related causes in the United States, the
cost of alcohol-related harm to society is enormous, both in human and economic terms.
50
Drinking and driving is a significant cause of the thousands of alcohol-related injuries and fatali-
ties that occur each year, with 13,470 people killed in alcohol-impaired driving crashes in 2006
alone.
51
More interventions are needed to address the problem of drinking drivers. Alcohol ser-
vice and sales practices can be linked to the increased risk of impaired driving and alcohol-
related violence and injury, and this strongly suggests that interventions designed to improve
serving practices and the enforcement of laws governing these practices will produce a decrease
in alcohol-related harm.
52
Laws Prohibiting Alcohol Sales to Intoxicated Persons is an important contribution to the re-
search literature on strategies for reducing alcohol impaired driving and other alcohol-related
public health and safety problems through enforcement of SIP laws. As detailed in this report,
research on retail compliance with and enforcement of SIP laws is limited, and what little re-
search exists suggests that more active enforcement of SIP laws has tremendous potential for re-
ducing alcohol-related problems since intoxication can be controlled at the level of the licensed
establishment.
The legal research findings in this report provide the first ever comprehensive and substantive
analysis of State SIP laws. They also draw attention to key statutory elements that help or hinder
enforcement and adjudication efforts, and examine the impact of case law findings on general
understanding of SIP law. These findings generated several best practice recommendations that
would be of considerable utility to any effort to curb SIP law violations. Qualitative research
findings on enforcement and adjudication practices provide additional insight into what would be
necessary for and helpful to effective enforcement practices and successful prosecution of SIP
law violations.
The report is designed for policymakers, administrators, researchers, law enforcement profes-
sionals, health and safety advocacy groups, and others who are working to reduce injuries and
fatalities stemming from alcohol impaired driving. The findings and best practice recommenda-
tions provide a foundation for augmenting their efforts to prevent these tragedies on the Nation’s
highways with the effective application of State SIP laws.
44
















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McKnight, A .J., & Streff, F. M. (1994). The effect of enforcement upon service of alcohol to
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NHTSA. (2006, February). Research Report: Preventing Over-consumption of Alcohol - Sales
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APIS data is reported on the NIAAA Web site: www.apis.niaaa.nih.gov.
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Mosher, J., et al. Liquor Liability Law. Newark, NJ: Matthew Bender/LexisNexis (updated
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17
Some States treat SIPs as “petty offenses” or impose “civil” fines for violations, which may be
similar to minor infractions such as parking tickets. For non-licensee defendants, the violation
may initially be heard by an administrative hearing officer in a quasi-criminal proceeding, al-
though appeals typically involve court appearances.
18
Alaska, Delaware, Indiana, Louisiana, Michigan, New Mexico, Oregon, Rhode Island, Ten-
nessee, Utah, Vermont, Washington, and Wisconsin. New Hampshire and New Jersey require
RBS training for managers but not servers. Nevada has mandatory training but does not have a
SIP law. Alcohol Policy Information System, Beverage Service Training. National Institute on
Alcohol Abuse and Alcoholism Web site: www.apis.niaaa.nih.gov. Current as of January 1,
2007.
19
See, e.g., Down Under, Ltd. v. Delaware Alcoholic Beverage Control Com’n, 576 A.2d 675
(1989) (administrative proceedings have lesser evidentiary standard even when proceeding
brought for violation of a criminal statute).
46



























20
Las Vegas Municipal Code (Nev.) § 6.50.450. Accessible online at: http://ordlink.com/
codes/lasvegas/index.htm.
21
Some States also prohibit sales to “habitual drunkards.” This term has potential Constitutional
problems, and State enforcement and administrative agencies generally ignore its inclusion. It is
therefore not included in this analysis.
22
Virginia Code Ann. § 4.1-100.
23
Alaska Stat. Ann. § 04.21.080.
24
Neb. Admin. R. & Regs. Tit. 237, Ch. 6, § 019.
25
See, e.g., Thompson v. Bryson, 19 Ariz.App. 134, 505 P.2d 572 (1973); State v. Mata, 71 Haw.
319, 789 P.2d 1122 (1990).
26
See, e.g., Seeley v. Sobczak, 281 N.W.2d 368 (1979); In re Tweer, 146 Vt. 36, 498 A.2d 499
(1985).
27
See, e.g., Bailey v. Black, 183 W.Va. 74, 394 S.E.2d 58 (1990).
28
See, e.g., Krupp Oil Company, Inc. v. Mack Yeargan, et al., 665 So.2d 920 (1995).
29
Sanders v. Officers Club of Connecticut, Inc. 196 Conn. 341, 493 A.2d 184 (1985).
30
For citations, see Appendix B.
31
No case law or administrative ruling was located to address this issue.
32
T. C. A. § 57-3-406(c).
33
AK § 04.16.030.
34
Gariup Const. Co., Inc. v. Foster, 519 N.E.2d 1224, 1229-30 (Ind. 1988).
35
See, e.g., Callender v. Transpacific Hotel Corp., 179 Ariz. 557, 880 P.2d 1103(1994).
36
See, e.g., Kavorkian v. Tommy’s Elbow Room, Inc., 694 P.2d 160 (1985) (court separated issue
of whether a patron was exhibiting signs of intoxication from whether seller used his powers of
observation to fulfill his affirmative duty to determine whether the patron was intoxicated).
37
Adamy v. Zirakus, 231 A.D.2d 546, 694 N.Y.S.2d 399 (1999).
38
Copeland v. Tela Corp. 996 P.2d 931 (OK 1999)
39
Studebaker’s of Savannah, Inc. v. Tibbs, 195 Ga.App. 142, 392 S.E.2d 908 (1990).
47



























40
Vickowski v. Polish American Citizens Club of Town of Deerfield, Inc., 422 Mass. 606, 664
N.E.2d 429 (1996).
41
Life’s a Beach Club, Inc. v. Liquor Control Adjudication Board, 100 Hawai’i 33 (2002).
42
In re Tweer, 146 Vt. 36, 38, 498 A.2d 499, 500-01 (1985).
43
Powers Package Store, Inc. v. Natick Bd. of Selectman 15 Mass.L.Rptr. 319 (2002).
44
Pate v. Alian, 49 P.3d 85 (Okl., 2002); In re Tweer, supra.
45
Studebaker’s of Savannah, Inc. v. Tibbs, 195 Ga.App. 142, 392 S.E.2d 908 (1990).
46
See, e.g., A.C. Cruise Line, Inc. v. Alcoholic Beverages Control Com’n, 29 Mass. App. Ct.
319, 560 N.E.2d 145 (1990) (in State without “loitering” provision, licensee does not have duty
to assure that an intoxicated person does not consume or possess alcohol).
47
NHTSA. (2006).
48
The guidelines establish a $250 fine, although mitigating or aggravating circumstances may
result in the fine being adjusted. Or. Adm. Rules § 845-006-0500 (Exhibit 1).
49
NHTSA. (2005, July). Research Report: The Role of Alcohol Beverage Control Agencies in
the Enforcement and Adjudication of Alcohol Laws. DOT HS 809 877.Washington, DC: Na-
tional Highway Traffic Safety Administration. Available on online at:
http://www.nhtsa.dot.gov/people/injury/enforce/ABCRoleWebhttps://zh.scribd.com/images/ABCFinal.pdf.
Accessed July 1, 2007.
50
Mokdad, A., et al. (2004).
51
NHTSA. (2008, March). Traffic Safety Facts: 2006 Data. Alcohol-Impaired Driving. DOT HS
810 801. Washington, DC: National Highway Traffic Safety Administration.
52
McKnight, A.J., & Streff, F. M. (1994); Toomey, T. L., et al. (2001).; A.C. & Holder, H.
(1991); Holder, et al. (1993); and Wiggers, J., et al. (2001).
48































































APPENDIX A: Overview of SIP Statutes and Regulations*
State Who may be liable: Criminal
Who may be liable:
Administrative
Prohibited acts Evidentiary requirements
Any person Licensee Employee Licensee Employee
Consume or remain
on premises
Knowledge
Criminal
negligence
Negligence
AL
√ √ √
AK
√ √ √ √ √ √
AZ
√ √ √ √ √ FN 1
AR
√ √ √ √
CA
√ √ √ √
CO
√ √ √ √ √
CT
√ √ √
DE
√ √ √ √
DC
√ √ √ √ √
FL
No statute or regulation
GA
√ √ √ √ FN 2
HI
√ √ √ √
ID
√ √ √ √ √
IL
√ √ √
IN
√ √ √ √ √ √
IA
√ √ √ √
KS
√ √ √ √ √ √
KY
√ √ √
LA
√ √ √ √
ME
√ √ √ √ √
MD
√ √ √
MA
√ √ √
MI
√ FN 3 √ √
MN
√ √ √ √
MS
√ √ √ √
MO
√ √ √ √
MT
√ √ √ √
NE
√ √ √ √
NV
No statute or regulation
NH
√ √ √ √
NJ
√ √ √ √
NM
√ √ √ √ √ √
NY
√ √ √ √ √
NC
√ √ √ √ √
ND
√ √ √ √ √
OH
√ √ √
OK
√ √ √ √ √
OR
√ √ √ √ √ √ √
PA
√ √ √ √
RI
√ √
SC
√ √ √ √
SD
√ √
TN
√ √ √ √ √
TX
√ FN 4 √ FN 4 √
UT
√ √ √ √ √ √
VT
√ √ √
VA
√ √ √ √ √ √
WA
√ √ √ √ √ √
WV
√ √ √
WI
√ √ √ √ √
WY
FN 5 FN 5
Footnote 1: The negligence standard in Arizona appears to apply only to that part of the statute involving an intoxicated person remaining on the premises.
Footnote 2: The Georgia State agency can impose administrative penalties only for "willful" violation of the SIP law. Local agencies have concurrent jurisdiction and can impose penalties without regard to whether the violation was willful.
Footnote 3: Michigan law prohibits a "vendor" from selling to an intoxicated person. It is unclear whether the term "vendor" includes servers.
Footnote 4: No vicarious liability for employee where employer meets requirements RBS training.V. T. C. A., Alcoholic Beverage Code § 106.14
Footnote 5: Licensees with drive-in areas adjacent or contiguous to the licensed room only.
49









APPENDIX B: State SIP Statutes
ALABAMA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Ala. Admin.
Code r. 20-X-6-
.02
ABC Board on-premises licensee, employee,
or agent thereof.
Serving any person
alcoholic beverages if
such person appears,
considering the totality of
the circumstances, to be
intoxicated.
Ala. Admin.
Code r. 20-X-6-
.14
ABC Board off-premises licensee, employee,
or agent there of.
Selling, furnishing or
giving any alcoholic
beverage to any person if
such person appears,
under the totality of the
circumstances, to be
intoxicated.
50






















APPENDIX B: State SIP Statutes
ALASKA
Law Prohibiting Who May Be
Held Liable?
Liable for What Act? Definition of Intoxicated Mental State of Seller
AS 04.16.030 A licensee, an
agent, or
employee.
(a) Selling, giving, or
bartering alcoholic
beverages
(b) Allowing another person
to sell, give, or barter an
alcoholic beverage
(c) Allowing a drunken
person to enter and remain
within licensed premises or
to consume an alcoholic
beverage within licensed
premises
(d) Permitting a drunken
person to sell or serve
alcoholic beverages.
(8) "Drunken person"
means a person whose
physical or mental conduct
is substantially impaired as
a result of the introduction
of an alcoholic beverage
into the person's body and
who exhibits those plain
and easily observed or
discovered outward
manifestations of behavior
commonly known to be
produced by the
overconsumption of
alcoholic beverages;
AK ST § 04.21.080
With criminal negligence:
(1) a person acts with "criminal negligence" with
respect to a result or to a circumstance
described by a provision of law defining an
offense when the person fails to perceive a
substantial and unjustifiable risk that the result
will occur or that the circumstance exists; the
risk must be of such a nature and degree that
the failure to perceive it constitutes a gross
deviation from the standard of care that a
reasonable person would observe in the
situation;
AS 04.21.080
A person Delivering alcoholic Knowingly:
receiving beverages to a drunken (2) a person acts "knowingly" with respect to
compensation for person. conduct or to a circumstance described by a
transporting provision of law defining an offense when the
alcoholic person is aware that the person's conduct is of
beverages. that nature or that the circumstance exists;
when knowledge of the existence of a particular
fact is an element of an offense, that knowledge
is established if a person is aware of a
substantial probability of its existence, unless
the person actually believes it does not exist; a
person who is unaware of conduct or a
circumstance of which the person would have
been aware had the person not been intoxicated
acts knowingly with respect to that conduct or
circumstance; AS 04.21.080
51














APPENDIX B: State SIP Statutes
ARIZONA
Law
Prohibiting
Who May Be Held
Liable?
Liable for What Act? Definition of Intoxicated Mental State
of Seller
A.R.S. § 4-244 A licensee or other person. Selling or furnishing spirituous liquor “Obviously intoxicated” means Knew or
(14) to an obviously intoxicated person, or
allowing or permitting an obviously
intoxicated person to remain on the
premises, except that a licensee or
an employee of the licensee may
allow an obviously intoxicated person
to remain on the premises for a
period of time not to exceed thirty
minutes after the state of obvious
intoxication is known or should be
known to the licensee in order that a
nonintoxicated person may transport
the obviously intoxicated person from
the premises.
inebriated to the extent that a
person’s physical faculties are
substantially impaired and the
impairment is shown by significantly
uncoordinated physical action or
significant uncoordinated physical
action or significant physical
dysfunction that would have been
obvious to a reasonable person.
A.R.S. § 4-244 (14)
should have
known
(apparently
applicable only
to provision
regarding an
obviously
intoxicated
person
remaining on
the premises).
52










APPENDIX B: State SIP Statutes
ARKASAS
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
A.C.A. § 3-3-209 Any person. Selling, giving away, or disposing of
intoxicating liquor to an intoxicated
person.
AR ADC 006 02
001
The holder of a permit to
sell or dispense controlled
beverages at retail.
Selling to an intoxicated person.
53








APPENDIX B: State SIP Statutes
CALIFORNIA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
West's
Ann.Cal.Bus. &
Prof.Code §
25602
Any person. Selling, furnishing, giving, or causing
to be sold, furnished, or given away,
any alcoholic beverage to any
obviously intoxicated person.
54


















APPENDIX B: State SIP Statutes
COLORADO
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
C.R.S.A. § 12-
47-301
The licensee during a
tasting.
“Tastings” service to visibly
intoxicated.
C.R.S.A. § 12-
47-901
”Any person” C.R.S.A. §
12-47-901(1)(a)
“any person licensed to sell
at retail” C.R.S.A. § 12-47-
901(5)(a)(I)
Selling, serving, giving away,
disposing of, exchanging, or
delivering or permitting the sale,
serving, giving, or procuring of, any
alcohol beverage to a visibly
intoxicated person.
1 CO ADC 203-
2 Regulation 47-
900
Licensee or employee of
the licensee.
Permitting the serving or loitering of a
visibly intoxicated patron.
55











APPENDIX B: State SIP Statutes
CONNECTICUT
Law
Prohibiting
Who May Be Held
Liable?
Liable for What Act? Definition of Intoxicated Mental State
of Seller
C.G.S.A. § 30-
86
Any permittee or any
servant or agent of a
permittee.
Selling or delivering alcoholic liquor
to any minor or any intoxicated
person, or to any habitual drunkard,
knowing the person to be such a
habitual drunkard.
CT ADC § 30-6-
B21a
Package stores and
charitable organizations.
During “tastings” serving an alcoholic
beverage or allowing an alcohol
beverage to be consumed by an
intoxicated person.
56










APPENDIX B: State SIP Statutes
DELAWARE
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
4 Del.C. § 706 Any licensee, or employee
of a licensee, or person in
charge of a licensed
premise.
Selling or serving alcoholic liquors to
any individual if such individual is
intoxicated or appears to be
intoxicated.
57









APPENDIX B: State SIP Statutes
DISTRICT OF COLUMBIA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
DC ST § 25-
781
(no mention) The sale or delivery of alcoholic
beverages to any person who
appears to be intoxicated.
DC ST § 25-
781
A retail licensee. Permitting at the licensed
establishment the consumption of an
alcoholic beverage by an intoxicated
person, or any person who appears to
be intoxicated.
58




APPENDIX B: State SIP Statutes
FLORIDA
No SIP laws or regulations.
59







APPENDIX B: State SIP Statutes
GEORGIA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Ga. Code Ann.,
§ 3-3-22
N/A No alcoholic beverage shall be sold,
bartered, exchanged, given, provided,
or furnished to any person in a state of
noticeable intoxication.
60










APPENDIX B: State SIP Statutes
HAWAII
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
HI ST § 281-78 Any licensee or employee
of the licensee.
Selling, serving, or furnishing any liquor
to, or allowing the consumption of any
liquor by any person at the time under
the influence of liquor.
“'Under the influence of liquor'
means that the person concerned
has consumed intoxicating liquor
sufficient to impair at the particular
time under inquiry the person's
normal mental faculties or ability to
care for oneself and guard against
casualty, or sufficient to
substantially impair at the time
under inquiry that clearness of
intellect and control of oneself
which the person would otherwise
normally possess.”
HI ST § 281-1
See also: State v. Mata
61














APPENDIX B: State SIP Statutes
IDAHO
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
I.C. § 23-312 An officer, agent, or
employee of the
dispensary.
Selling any alcoholic liquor to any
person intoxicated or apparently
intoxicated.
I.C. § 23-605 Any person. Selling, giving, or dispensing any
alcohol beverage, including any distilled
spirits, beer or wine, to another person
who is intoxicated or apparently
intoxicated shall be guilty of a
misdemeanor.
I.C. § 23-615 No person licensed
pursuant to title 23, Idaho
Code, or his or its
employed agents, servants,
or bartenders.
Selling, delivering or giving away, or
causing or permitting to be sold,
delivered, or given away, or allowed to
be consumed, any alcohol beverage,
including any distilled spirits, beer or
wine, to any person actually, apparently
or obviously intoxicated.
62









APPENDIX B: State SIP Statutes
ILLINOIS
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
235 ILCS 5/6-
16
A licensee, any officer,
associate, member,
representative, agent, or
employee of such licensee.
Selling, giving, or delivering alcoholic
liquor to any intoxicated person, except
as provided in Section 6-16.1.
63










APPENDIX B: State SIP Statutes
INDIANA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
IC 7.1-5-10-15 “A person.” Selling, bartering, delivering, or giving
away an alcoholic beverage to another
person who is in a state of intoxication if
the person knows that the other person
is intoxicated.
Knowledge
required
64







APPENDIX B: State SIP Statutes
IOWA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
I.C.A. § 123.49 “A person.” Selling, dispensing, or giving to an
intoxicated person, or one simulating
intoxication, any alcoholic liquor, wine,
or beer to an intoxicated person.
65










APPENDIX B: State SIP Statutes
KANSAS
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
K.S.A. § 41-
2708
Person holding a license. Permitting any intoxicated person to
remain in or upon the licensee's place
of business.
KS ADC 14-13-
13
Retailer. Allowing an intoxicated person to
frequent, loiter, or be employed upon
the licensed premises.
KS ST § 41-
715
“A person.” Knowingly selling, giving away,
disposing of, exchanging or delivering,
or permitting the sale, gift or procuring
of any alcoholic liquor to or for any
person who is an incapacitated person,
or any person who is physically or
mentally incapacitated by the
consumption of such liquor.
Knowledge
required
66













APPENDIX B: State SIP Statutes
KENTUCKY
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
KRS § 244.080 “A retail licensee”
Includes employees of
retail licensee.
Commonwealth v. White,
Ky., 3 S.W.3d 353 (1999)
Selling, giving away, or delivering any
alcoholic beverages, or procuring or
permitting any alcoholic beverages to
be sold, given away, or delivered to a
person actually or apparently under the
influence of alcoholic beverages.
67













APPENDIX B: State SIP Statutes
LOUISIANA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
LSA-R.S. 26:90 Holder of a retail dealer's
permit and the agent,
associate, employee,
representative, or servant
of any such person.
Selling or serving or permitting the sale
or service of alcoholic beverages to any
intoxicated person.
LSA-R.S.
26:286
Holder of a retail dealer's
permit and the agent,
associate, employee,
representative, or servant
of any such person.
Selling or serving or permitting the sale
or service of beverages of low alcoholic
content to any intoxicated person.
68













APPENDIX B: State SIP Statutes
MAINE
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
M.R.S. 28-A,
§2081
A person.
Procure, or in any way aid or assist in
procuring, furnish, give, sell, or deliver
liquor to a visibly intoxicated person.
Code Me. R. 16-
226 Ch. 2, § 1
Licensee for on premise
consumption.
Permitting the consumption of liquor on
licensed premises by persons visibly
intoxicated.
69















APPENDIX B: State SIP Statutes
MARYLAND
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
MD Code, Art.
2B, § 12-108
Licensee, any employee of
the licensee.
Selling or furnishing any alcoholic
beverages at any time to any person
who, at the time of the sale, or delivery,
is visibly under the influence of any
alcoholic beverage.
MD Code, Art.
2B, § 20-107
Applies only in
Howard County.
Licensee, any employee
ofthe licensee.
Facilitating in any way the continued
consumption of alcoholic beverages by
any patron who appears to be
inebriated.
70








APPENDIX B: State SIP Statutes
MASSACHUSETTS
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
M.G.L. c. 138,
s. 69
Licensees and employees. No alcoholic beverage shall be sold or
delivered on any premises licensed
under this chapter to an intoxicated
person.
71









APPENDIX B: State SIP Statutes
MICHIGAN
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
M.C.L.A.
436.1707
and
M.C.L.A.
436.2025
A vendor. Selling any alcoholic liquor to any
person in an intoxicated condition.
M.C.L.A.
436.1801
This is part of
the dram shop
law
A retail licensee. Selling, furnishing, or giving alcoholic
liquor to a person who is visibly
intoxicated.
72






APPENDIX B: State SIP Statutes
MINNESOTA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
M.S.A. §
340A.502
A person. Selling, giving, furnishing, or in any way
procuring alcoholic beverages for the
use of an obviously intoxicated person.
73











APPENDIX B: State SIP Statutes
MISSISSIPPI
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Miss. Code Ann.
§ 67-1-83
Permittee or other person. Selling or furnishing any alcoholic
beverage to a visibly or noticeably
intoxicated person.
Miss. Code Ann.
§ 67-3-53
1) Holder of permit for sale
of beer or light wine or
2) Employee of permit
holder.
Selling, giving, or furnishing beer or light
wine to a visibly or noticeably
intoxicated person.
74












APPENDIX B: State SIP Statutes
MISSOURI
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
V. A. M. S. Licensee, employee. Selling, vending, giving away, or
311.310 otherwise supplying any intoxicating liquor
in any quantity whatsoever to: (1) Any
person intoxicated or appearing to be in a
state of intoxication, or to (2) habitual
drunkard.
V. A. M. S. Any person whomsoever Procuring for, selling, giving away, or
311.310 except his parent or
guardian.
otherwise supplying intoxicating liquor to:
(1) Any intoxicated person or any person
appearing to be in a state of intoxication,
or (2) habitual drunkard.
V. A. M. S. A person or his employee. Selling or supplying nonintoxicating beer
312.400 or permitting same to be sold or supplied
to: (1) Any person who is under or
apparently under the influence of alcoholic
beverages or (2) habitual drunkard.
(“Nonintoxicating beer" means “any beer
manufactured from pure hops or pure
extract of hops, and pure barley malt or
other wholesome grains or cereals, and
wholesome yeast, and pure water, and
free from all harmful substances,
preservatives and adulterants, and having
an alcoholic content of more than one-half
of one percent by volume and not
exceeding three and two-tenths percent
by weight.” – See V.A.M.S. 312.010,
subd. (2).)
75









APPENDIX B: State SIP Statutes
MONTANA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
MCA 16-3-301 Any licensee, a licensee's
employee, or any other
person.
Selling, delivering, or giving away, or
causing or permitting to be sold,
delivered, or given away any alcoholic
beverage.
Any person actually, apparently, or
obviously intoxicated.
MCA 16-6-304 Store manager, retail
licensee, or any employee
of a store manager or retail
licensee.
Selling any alcoholic beverage or
permitting any alcoholic beverage to be
sold.
Any person apparently under the
influence of an alcoholic beverage.
76













APPENDIX B: State SIP Statutes
NEBRASKA
Law Prohibiting Who May Be Held
Liable?
Liable for What Act? Definition of Intoxicated Mental State
of Seller
Neb. Admin. R. &
Regs. Tit. 237,
Ch. 6, § 019
Licensee or partner,
principal, agent, or
employee of any licensee.
Selling, serving, or furnishing alcoholic
beverages or allowing possession of
alcoholic beverages on the licensed
premise to any person who is or has
become intoxicated and/or
incapacitated by the consumption of
alcoholic beverages and/or other drugs
or who is mentally incapacitated.
A person shall be deemed to be
intoxicated when it can be plainly
determined by appearance,
conduct, and/or demeanor.
Indicators of intoxication are listed
in regulation.
77









APPENDIX B: State SIP Statutes
NEVADA
Law Prohibiting Who May be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
N. R. S. 244.350 The regulation of the sale of
alcohol is a matter of local
ordinance.
78








APPENDIX B: State SIP Statutes
NEW HAMPSHIRE
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Title XIII
Chapter 179
RSA 179:5
Licensee, salesperson,
direct shipper, common
carrier, delivery agent, or
any other person.
Selling or giving away or causing or
allowing or procuring to be sold,
delivered, or given away any liquor or
beverage to an intoxicated individual.
"Intoxicated individual" means an
individual whose mental or physical
faculties are impaired as a result of
drug or alcohol use so as to
diminish that person's ability to think
and act in a manner in which an
ordinary, prudent and cautious
person, in full possession of his
faculties and using reasonable care,
would act under like circumstances.
79











APPENDIX B: State SIP Statutes
NEW JERSEY
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
N.J.A.C. 13:2-
23.1
Licensee. Selling, serving or delivering or
allowing, permitting or suffering the
sale, service or delivery of any alcoholic
beverage, directly or indirectly to any
person actually or apparently
intoxicated.
N.J.A.C. 13:2-
23.1
Licensee. Permitting or suffering the consumption
of any alcoholic beverage to any person
actually or apparently intoxicated in or
upon the licensed premises.
N. J. S. A.
2A:22A-3
Licensed alcoholic
beverage server.
"Visibly intoxicated" means a state
of intoxication accompanied by a
perceptible act or series of acts
which present clear signs of
intoxication.
N. J. S. A. 33:1-
12
Class III Plenary retail
distribution licensee who
sell any alcoholic
beverages for consumption
off the licensed premises,
but only in original
containers.
As part of a consumer wine tasting,
offering samples to or allowing samples
to be consumed by and intoxicated
person.
80
















APPENDIX B: State SIP Statutes
NEW MEXICO
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated
1
Mental State
of Seller
NMSA 1978, §
60-7A-16
Any person. Selling or serving alcoholic beverages
to or procuring or aiding in the
procurement of alcoholic beverages for
an intoxicated person if the person
selling, serving, procuring or aiding in
procurement, knows or has reason to
know that he is selling, serving,
procuring or aiding in procurement of
alcoholic beverages to an intoxicated
person.
Negligence
standard
(knows or has
reason to
know)
N.M. Admin.
Code 15.10.51
Licensee. Selling or serving alcoholic beverages
to any person who is obviously
intoxicated.
Special note: In addition to other commonly recognized tests of intoxication, a blood alcohol content level of .14 or higher on a test taken not more
than one (1) hour after sale or service of alcoholic beverages shall be presumptive evidence that the purchaser was intoxicated at the time of the
last sale.
81
1
















APPENDIX B: State SIP Statutes
NEW YORK
Law Prohibiting Who May Be Held
Liable?
Liable for What Act? Definition of Intoxicated Mental State
of Seller
McKinney's Any person. Selling, delivering, or giving away or
Alcoholic causing or permit or procuring to be
Beverage Control sold, delivered or given away any
Law § 65 alcoholic beverages to any
visibly
intoxicated person.
McKinney's A retail licensee for on- Providing such key, card or similar
Alcoholic premises consumption device to any person who is visibly
Beverage Control that is a person or intoxicated.
Law § 106 corporation operating a
hotel selling liquors, beer,
and/or wines through a
mechanical device or
vending machine placed in
the lodger's rooms and to
which access to such
device or machine is
restricted by means of a
locking device which
requires the use of a key,
magnetic card or similar
device.
State Liquor Bottle club licensee. (1) Delivering, serving, or giving away
Authority Rules, § or permitting or procuring to be
49.9 McK. delivered, served or given away any
Consol. Laws, alcoholic beverage; or (2) Permitting to
Book 3 App. consume any alcoholic beverage in
the licensed premises any intoxicated
person or any person apparently under
the influence of any alcoholic beverage.
82









APPENDIX B: State SIP Statutes
NORTH CAROLINA
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
N.C.G.S.A. §
18B-305
Permittee or his employee
or an ABC store employee.
Knowingly selling or giving alcoholic
beverages to any person who is
intoxicated.
Knowledge
required
4 NCAC
2S.0206
Permittee or his employees. Allowing consumption of alcoholic
beverages on his licensed premises by
intoxicated persons.
83






APPENDIX B: State SIP Statutes
NORTH DAKOTA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
NDCC 5-01-09 Any person. Knowingly delivering alcoholic
beverages to an obviously intoxicated
person.
Knowledge
required
84







APPENDIX B: State SIP Statutes
OHIO
Law Prohibiting Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
R.C. § 4301.22 Permit holder and agent or
employee of a permit
holder.
Selling or furnishing beer or intoxicating
liquor to an intoxicated person.
85









APPENDIX B: State SIP Statutes
OKLAHOMA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
37 Okl. St.
Ann. § 247
Holder of a retail license or
permit to sell low-point beer,
or an employee or agent of a
holder of such a license or
permit.
Knowingly, willfully, and wantonly
selling, delivering, or furnishing low-
point beer to an intoxicated person.
Knowledge
required
37 Okl. St.
Ann. § 537
Any person. Selling, delivering, or knowingly
furnishing alcoholic beverages to an
intoxicated person.
Knowledge
required
86










APPENDIX B: State SIP Statutes
OREGON
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
O. R. S. §
471.315
Licensee. Knowingly selling alcoholic liquor to
persons visibly intoxicated at the time of
sale; or knowingly allowing the
consumption of alcoholic liquor on the
licensed premises by persons visibly
intoxicated at the time of consumption.
Knowledge
required
O. R. S. §
471.410
Any person. Selling, giving, or otherwise making
available any alcoholic liquor to avisibly
intoxicated person.
O. R. S. §
471.412
Licensee or permittee. Knowingly allowing a person to
consume or to continue to consume
alcoholic beverages on the licensed
premises after observing that the
person is visibly intoxicated.
Knowledge
required
87









APPENDIX B: State SIP Statutes
PENNSYLVANIA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
47 P.S. § 4-
493
Licensee or the board, or any
employee, servant, or agent of
such licensee or of the board, or
any other person.
Selling, furnishing, or giving any liquor
or malt or brewed beverages, or
permitting any liquor or malt or
brewed beverages to be sold,
furnished or given to any person
visibly intoxicated.
42 Pa.C.S.A.
§ 8522
Commonwealth of PA. Selling liquor at Pennsylvania liquor
stores by employees of the
Pennsylvania Liquor Control Board to
any person visibly intoxicated.
88









APPENDIX B: State SIP Statutes
RHODE ISLAND
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Gen. Laws,
1956, § 3-8-1
Licensees. Selling of alcoholic beverages to any
intoxicated persons or to any person
of notoriously intemperate habits.
89
















APPENDIX B: State SIP Statutes
SOUTH CAROLINA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Code 1976 §
61-4-580
Holder of a permit authorizing
the sale of beer or wine or a
servant, agent, or employee of
the permittee.
Knowingly committing selling beer or
wine to an intoxicated person.
Knowledge
required
Code 1976 §
61-6-1500
Retail dealer. Selling, bartering, exchanging, giving,
or offering for sale, barter, or
exchange, or permitting the sale,
barter, exchange, or gift of alcoholic
liquors to an intoxicated person.
Code 1976 §
61-6-2220
A person or establishment
licensed to sell alcoholic liquors
or liquor by the drink pursuant to
this article [Article 5. Regulation
of Alcoholic Liquors in
Minibottles].
Selling alcoholic liquors in minibottles
to persons in an intoxicated
condition.
90










APPENDIX B: State SIP Statutes
SOUTH DAKOTA
Law
Prohibiting
Who May be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
S D C L §
35-4-78
Licensee. Selling any alcoholic beverage to any
person who is obviously intoxicated at
the time.
91









APPENDIX B: State SIP Statutes
TENNESSEE
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
T. C. A. §
57-3-406
Local option; off-premises retailer. Selling any alcoholic beverages to
any person who is drunk or any
person accompanied by a person who
is drunk.
T. C. A. §
57-4-203
On-premises licensee or other
person.
Selling or furnishing any alcoholic
beverage any person who is visibly
intoxicated.
92












APPENDIX B: State SIP Statutes
TEXAS
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
V. T. C. A.,
Alcoholic
Beverage
Code §
101.63
Any person. Selling with criminal negligence an
alcoholic beverage to an intoxicated
or insane person.
Criminal
negligence.
V. T. C. A.,
Alcoholic
Beverage
Code §
106.14
[Section limiting liability of
licensee.]
A sale of an alcoholic beverage to an
intoxicated person by an employee
will not be attributable to the employer
(licensee) if:
(1) the employer requires its
employees to attend a commission-
approved seller training program;
(2) the employee has actually
attended such a training program; and
(3) the employer has not directly or
indirectly encouraged the employee to
violate such law.
93








APPENDIX B: State SIP Statutes
UTAH
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
U.C.A. 1953 §
32A-12-204
Any person. Negligently, recklessly, or
knowingly selling, offering to sell, or
otherwise furnishing any alcoholic
beverage or product to: (1) any
person who is actually or
apparently intoxicated; or (2) a
person whom the person furnishing
the alcoholic beverage knew or
should have known from the
circumstances was actually or
apparently intoxicated.
With
negligence,
recklessness,
or knowledge
94













APPENDIX B: State SIP Statutes
VERMONT
1
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Vermont
Dept. of Liquor
Control
General
Regulation 19
Licensees or their employees. Selling or furnishing alcoholic liquor
to a person apparently under the
influence of liquor. No alcoholic
liquor may be consumed on the
licensed premises by any person
apparently under the influence of
liquor. No person under the
influence of alcoholic liquor shall be
allowed to loiter on the licensed
premises.
1
There is no provision in Vermont that makes it a crime for a licensee to sell, furnish, or otherwise provide alcohol to an intoxicated patron.
95










APPENDIX B: State SIP Statutes
VIRGINIA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
Va. Code Ann.
§ 4.1-304
Any person. Selling any alcoholic beverages
when at the time of such sale
person knows or has reason to
believe that the person to whom the
sale is made is intoxicated.
“Intoxicated” means “a condition in
which a person has drunk enough
alcoholic beverages to observably
affect his manner, disposition,
speech, muscular movement, general
appearance or behavior.” Va. Code
Ann. § 4.1-100
Negligence
standard – has
knowledge or
has reason to
believe
3 VAC 5-50-10 Licensee. Selling any alcoholic beverages
when at the time of such sale
licensee knows or has reason to
believe that the person to whom the
sale is made is intoxicated.
Negligence
standard – has
knowledge or
has reason to
believe
96





















APPENDIX B: State SIP Statutes
WASHINGTON
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
West's RCWA
66.44.200
Any person. Selling any liquor to any person
apparently under the influence of
liquor.
WA ADC 314-
11-035
Licensees or employees. Supplying liquor to any person
apparently under the influence of
liquor.
Allowing an apparently intoxicated
person to possess or consume
liquor on the licensed premises.
WAC 314-16-
150
Retail licensee. Giving or otherwise supplying any
liquor to any person apparently
under the influence of liquor.
WA ADC 314-
18-070
Banquet permittee, or
employee thereof.
Serving or permitting the
consumption of liquor by an
apparently intoxicated person(s) on
the premises for which a banquet
permit has been issued.
.
97
























APPENDIX B: State SIP Statutes
WEST VIRGINIA
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
W. Va. Code,
§ 11-16-18
Any licensee, his, her, its or
their servants, agents or
employees.
Selling, furnishing, or giving any nonintoxicating
beer to any person visibly or noticeably
intoxicated or any person known to be a habitual
drunkard.
W. Va. Code
St. R. § 176-1-
6
Any licensee, his, her, its or
their servants, agents or
employees.
Selling, furnishing, or giving any nonintoxicating
beer to any person visibly or noticeably intoxicated, or
to any person known to be a habitual drunkard.
W. Va. Code,
§ 60-3-22
Sellers of alcoholic beverages.
(Court decision clarified this.
See Overbaugh v. McCutcheon,
183 W.Va. 386, 396 S.E.2d 153
(1990).
Selling alcoholic liquors or nonintoxicating beer to
a person who is intoxicated.
W. Va. Code,
§ 60-3A-25
Any retail licensee, or agent or
employee.
Selling, giving away, or permitting the sale of, gift
of, or the procurement of, any liquor for or to any
person visibly intoxicated.
W. Va. Code
St. R. § 175-5-
25
Any retail licensee, or agent or
employee.
Selling, giving away, or permitting the sale of, gift
of, or the procurement of, any alcoholic liquor for
or to any person visibly intoxicated.
W. Va. Code,
§ 60-7-12
Any private club licensee, or
agent, employee or member
thereof.
Selling, giving away, or permitting the sale of, gift to or
the procurement of any nonintoxicating beer, wine or
alcoholic liquors for or to any person who is physically
incapacitated due to consumption of nonintoxicating
beer, wine or alcoholic liquor or the use of drugs.
W. Va. Code,
§ 60-8-20
Licensee, his or her servants,
agents or employees.
Selling, furnishing or giving wine to any person
who is physically incapacitated due to the
consumption of alcoholic liquor or the use of
drugs.
98









APPENDIX B: State SIP Statutes
WISCONSIN
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
W. S. A.
125.07
Any person, licensee, or
permittee.
Procuring for, selling, dispensing,
or giving away alcohol beverages
or selling, vending, dealing, or
trafficking in alcohol beverages to a
person who is intoxicated.
99








APPENDIX B: State SIP Statutes
WYOMING
Law
Prohibiting
Who May Be Held Liable? Liable for What Act? Definition of Intoxicated Mental State
of Seller
W. S. 1977
§ 12-5-301
Holder of a retail liquor license with a
drive-in area adjacent or contiguous to
the licensed room.
Delivering alcoholic liquor or
malt beverages to an
intoxicated person.
100
















APPENDIX C: SIP Case Law
ALABAMA
Citation Analysis
Krupp Oil Company, Inc. v.
Mack Yeargan, et al., 665
So.2d 920.
Statute prohibiting sales to intoxicated persons is not overly broad or vague. Court found that a person of common
intelligence would understand that someone "appearing to be intoxicated" could exhibit some or all of the following:
the smell of alcohol on the breath; loud or boisterous behavior; slurred speech; glassy eyes; and unsteadiness. This
list is not meant to be exhaustive, but it indicates the kind of evidence that supports certain elements of criminal
charges involving intoxication.
ALASKA
Citation Analysis
Kavorkian v. Tommy's Elbow
Room, Inc.,
694 P.2d 160
Alaska,1985.
On summary judgment motion, court concluded that legislative history discussing “criminal negligence” of seller for
AS 04.16.030 supported placing an affirmative duty on employees to use their powers of observation “to see that
which can be easily seen, and hear that which can be easily heard…to determine whether the person is…drunken.”
Further, the court determined that it is a factual question for the jury to determine if the outward manifestations of
drunken person were observable and recognizable as usual indications of intoxications, and therefore, would
determine if the server acted with criminal negligence in serving such patron.
On determination of whether the patron was a “drunken person”, court reviewed conflicting evidence regarding
patrons “outward manifestations” of drunkenness, including whether patron had ability to play foosball, whether
patron was staggering, whether patron bumped into tables and whether patron was slurring his words. Court
determined that based on conflicting testimony, reasonable jurors could disagree over the extent of patron’s
drunkenness.
ARIZONA
Citation Analysis
Callender v. Transpacific Hotel
Corp., 179 Ariz. 557, 880 P.2d
1103 (1993).
Determination that patron of liquor licensee was not obviously intoxicated when he purchased a second bucket of
drinks was supported by sufficient evidence that first bucket was consumed quickly with friends, patron returned
immediately to bar for another, and patron did not appear intoxicated to rescue personnel after his diving crash.
Thompson v. Bryson, 19
Ariz.App. 134, 505 P.2d 572
(1973).
Term "under influence of intoxicating liquor," in § 28-692 providing that if there was 0.10% or more by weight of
alcohol in defendant's blood, it shall be presumed that defendant was under influence of intoxicating liquor, is not
synonymous with "intoxicated" in this section making it unlawful for a licensee to serve spirituous liquor to an
intoxicated person.
101





















APPENDIX C: SIP Case Law
CALIFORNIA
Citation Analysis
Paez v. Alcoholic Beverage Opinion evidence from police officer that patron’s intoxication was “obvious” was allowed, and jury is free to disregard
Control Appeals Bd., or agree with the opinion. Overruling parts of Johnson
and
People v. Smith, the Paez court recognized that with the
222 Cal.App.3d 1025, 272 adoption of Evidence Code section 805 testimony in the form of an opinion is not objectionable because it embraces
Cal.Rptr. 272 (1990). the ultimate issue to be decided by the trier of fact. However, the precedential value of Johnson and Smith remains
unaffected for the purposes of this case.
People v. Johnson, 81
Cal.App.2d Supp. 973, 185
P.2d 105 (1947).
In prosecution for selling alcoholic beverage to obviously intoxicated person, whether outward manifestations of such
person's intoxication, as shown by evidence, were obvious to person having normal powers of observation and
recognizable as usual indications of intoxicated person, was jury's exclusive province to determine. Further, seller
has a duty to observe patron before selling alcoholic beverages. But seller is not required to make a patron undergo
tests to determine whether patron is intoxicated.
(Overruled only as to issue of stating opinion of “obvious” was not allowed. See above for explanation.)
People v. Smith, 94
Cal.App.2d Supp. 975, 210
P.2d 98 (1949).
Government has to burden to prove that patron was intoxicated.
The conclusion of the court that the patron was “obviously” intoxicated at the time defendant served him was
sustained by evidence that the patron talked loudly, spilled some of the beer he was drinking, fell against a witness,
set the glass on the bar rather heavily several times, and asked in a loud voice for another glass of beer; also by
evidence that his balance was poor, face flushed, speech thick, and eyes bloodshot; his clothing was disarranged,
and he kept arguing with another person. In order to convict one on a charge of violating the statute here involved
two elements, touching the person served with liquor, must be proved: (1) that he was intoxicated; and (2) that his
condition was obvious.
Schaffield v. Abboud,
15 Cal.App.4th 1133, 19
Cal.Rptr.2d 205
Cal.App. 4 Dist. (1993).
The standard to determining “obvious intoxication” is that of a reasonable person.
The Schaffield court held that the following was the proper test for proving “obvious intoxication”: "The use of
intoxicating liquor by the average person in such quantity as to produce intoxication causes many commonly known
outward manifestations which are 'plain' and 'easily seen or discovered.' If such outward manifestations exist and the
seller still serves the customer so affected, he has violated the law, whether this was because he failed to observe
what was plain and easily seen or discovered, or because, having observed, he ignored that which was apparent."
Evidence supporting visible or outward signs of intoxication include, “incontinence, unkempt appearance, alcoholic
breath, loud or boisterous conduct, bloodshot or glassy eyes, incoherent, slow, deliberate or slurred speech, flushed
face, poor muscular coordination, unsteady or slow and deliberate walk, loss of balance, impaired judgment or
argumentative behavior.” A visibly intoxicated person must show one or more of these signs insufficiency to establish
visible intoxication as opposed to showing an individual that has merely been drinking.
102

























APPENDIX C: SIP Case Law
CONNECTICUT
Citation Analysis
State v. Katz,
122 Conn. 439, 189 A. 606
(1937).
The court stated that it was not necessary to formulate a definition for intoxication because the condition of
intoxication brought with it behavior that was a matter of general knowledge. Here the court determined that
staggering was a common condition of intoxication and therefore could support a factual determination that a person
was intoxicated. Further, the court disagreed with the challenge that the term “intoxicated person” in the statute was
to vague and uncertain to be enforceable
Wentland v. American Equity
Ins. Co.,
267 Conn. 592, 840 A.2d 1158
(2004).
The court stated that intoxication requires something more than merely being under the influence of alcohol. The
court also held that there are no inherent behaviors that would prove intoxication as a matter of law. Rather, it is for
the fact-finder to base a decision on whether a person is intoxicated by a review the evidence presented.
Sanders v. Officers Club of
Connecticut, Inc.,
196 Conn. 341, 493 A.2d 184
(1985).
Pursuant to a dram shop action, the court held that intoxication is more than simply being under the influence of
alcohol, but that it “means an abnormal mental or physical condition due to the influence of intoxicating liquors, a
visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical
functions and energies.” Further, the court noted an intoxicated person “need not be “dead-drunk.” It is enough if by
the use of intoxicating liquor he is “so affected in his acts or conduct that the public or parties coming in contact with
him can readily see and know this is so.”
DELAWARE
Citation Analysis
Down Under, Ltd. v. Delaware
Alcoholic Beverage Control
Com'n, 576 A.2d 675 (1989).
On a constitutional challenge to the statute against sales to intoxicated persons for vagueness, court held that
intoxication was a matter of common intelligence when applied to convictions for selling to an intoxicated person.
Proceedings before the Commission to revoke, suspend or fine a licensee are not criminal proceedings but civil
proceedings, even when revocation or other action is sought because of the violation of a criminal statute.
Because the proceedings are civil, they not require a showing beyond a reasonable doubt, even if the underlying
penalty is from the penal code and instead require a showing of substantial evidence.
Results of a breathalyzer test are admissible as evidence.
103






















APPENDIX C: SIP Case Law
GEORGIA
Citation Analysis
Studebaker’s of Savannah,
Inc. v. Tibbs, 195 Ga.App. 142,
392 S.E.2d 908 (1990).
Court allowed Physician’s expert testimony stating that breathalyzer test, without stating any numbers from the test,
contributed to the diagnosis of acute alcohol intoxicated. Testimony concerning observation of patient and hospital
records was admitted into evidence.
Evidence was sufficient to create a jury question as to whether Studebakers furnished alcohol to a “noticeably
intoxicate” patron despite testimony from the customer’s son and his co-worker that customer did not appear
intoxicated while at Studebakers. The court held that there was other direct evidence that the patron was noticeably
intoxicated, including, the physician’s testimony of acute alcohol intoxication, the length of time spent by the patron at
Studebaker’s and the testimony that the patron had not eaten in more than 24 hours.
HAWAII
Citation Analysis
State v. Mata, 71 Haw. 319,
789 P.2d 1122 (1990).
The phrase 'under the influence of intoxicating liquor' in a statute prohibiting driving under the influence does not have
the same meaning as the phrase '[u]nder the influence of liquor' as used in this section, since this chapter and the
DUI provisions in Chapter 291 apply to different situations, and are not in pari materia.
Life’s A Beach Club, Inc. v.
Liquor Control Adjudication
Bd., 100 Hawai'i 33 (2002).
Life’s a Beach, an unreported case, holds that the definition for “under the influence” is not void for vagueness.
Further, the court states that the administrative board did find by a preponderance of evidence that the licensee did
serve an intoxicated patron and that factors including erratic behavior were sufficient to find that the licensee “knew or
should have known” that the patron was “under the influence.”
Ono v. Applegate, 62 Haw.
131 (1980).
Statute prohibiting the sales to intoxicated persons requires a showing of knowledge or notice, so that in order to
impose a violation of the statute, it must be shown that licensee knew or reasonably should have known patron was
intoxicated.
ILLINOIS
Citation Analysis
People v. Rhodes,
243 Ill.App.3d 701, 612 N.E.2d
536 (1993).
In an action against seller of liquor to minors, where the alleged intoxicating liquor was shown to be one of the liquors
mentioned in the statute, its intoxicating quality did not need to be shown by the evidence.
104






















APPENDIX C: SIP Case Law
INDIANA
Citation Analysis
Gariup Const. Co., Inc. v.
Foster,
519 N.E.2d 1224 (1988).
“Violation of the misdemeanor statute proscribing furnishing alcoholic beverages to an intoxicated person requires
proof that the provider either had as his conscious objective, or was aware of a high probability, that he was providing
alcoholic beverage to an intoxicated recipient.”
Breathalyzer test coupled with medical testimony of test’s significance properly admitted as probative evidence of
intoxication.
Ashlock v. Norris,
475 N.E.2d 1167 (1985).
There are many factors to demonstrate knowledge of a person’s intoxication; including what and how much the
person was known to have consumed, the time involved, the person's behavior at the time, and the person's
condition shortly after leaving.
MASSACHUSETTS
Citation Analysis
Vickowski v. Polish American
Citizens Club of Town of
Deerfield, Inc.,
422 Mass. 606, 664 N.E.2d
429 (1996).
Direct evidence of obvious intoxication is not necessarily an essential part of a plaintiff's proof. This court has
observed that “service [to a patron] of a large number of strong alcoholic drinks [would be] sufficient to put [a
licensee] on notice that it was serving a [patron] who could potentially endanger others.” Cimino v. Milford Inc. In
other words, a jury confronted with evidence of a patron's excessive consumption of alcohol, properly could infer, on
the basis of common sense and experience, that the patron would have displayed obvious outward signs of
intoxication while continuing to receive service from the licensee. See P.J. Liacos, Massachusetts Evidence § 4.2, at
118-119; § 5.8.6, at 242-244 (6th ed. 1994 & Supp.1994). In the Cimino case, the evidence was that the patron had
been served six or more “‘White Russians' (an intoxicating beverage containing vodka and coffee-brandy liqueur).”
Powers Package Store, Inc. v.
Natick Bd. of Selectman,
15 Mass.L.Rptr. 319 (2002).
Not Reported in N.E.2d.
Patron’s admission that he was intoxicated at the time he was served alcohol was not enough to establish that the
intoxication was observable to the server for violation of the statute.
A.C. Cruise Line, Inc. v.
Alcoholic Beverages Control
Com'n,
29 Mass.App.Ct. 319, 560
N.E.2d 145 (1990).
Cruise line brought action seeking review of Alcoholic Beverages Control Commission's decision suspending its liquor
license for various violations. On appeal, the court held that statute prohibiting selling or delivering alcoholic
beverages to an intoxicated person did not impose duty on licensee to exercise reasonable care to assure that no
alcoholic beverage would find its way into hands of intoxicated person.
105

























APPENDIX C: SIP Case Law
MINNESOTA
Citation Analysis
Jewett v. Deutsch, 437 N.W.2d
717 (1989).
Jury finding of obvious intoxication was supported by sufficient evidence, which established that motorist's blood-
alcohol content was .27 one hour after arrest, approximately 10 to 15 beers were consumed in one and one-half
hours, and that there was disorientation. Further, using reasonable powers of observation, one sees, or should see
intoxication.
Seeley v. Sobczak, 281
N.W.2d 368 (1979).
Obviously intoxicated not the same as “under the influence.” BAC alone does not establish “obvious intoxication as a
matter of law. The seller must determine from what he observes whether the buyer has reached a point of saturation
where it would be illegal to sell him more liquor.
Knudsen v. Peickert, 301 Minn.
287, 221 N.W.2d 785 (1974).
Reinstatement of prohibition of sale of intoxicating liquor to any person "obviously intoxicated" means that dispenser
of intoxicating liquor does not have affirmative duty of prohibiting sale of liquor to person bearing signs of intoxication
not readily detectable by ordinary observation.
MISSISSIPPI
Citation Analysis
Estate of White ex rel. White v.
Rainbow Casino-Vicksburg
Partnership, L.P., 910 So.2d
713 (2005).
The court of appeal held there was no triable issue of fact that plaintiff was “visibly intoxicated,” within the meaning of
sections 67-1-83(1), 67-3-53, and 67-3-73, prohibiting sales to visibly intoxicated persons. Despite evidence that
licensee served patron a minimum of 6 drinks, there was not sufficient evidence to establish obvious intoxicate where
patron where patron visited the restroom a number of times, gambled among many slot machines, and conversed
with her husband throughout the day.
MONTANA
Citation Analysis
Cusenbary v. Mortensen, 296
Mont. 25, 987 P.2d 351 (1999).
MCA 46-18-212 prohibits a tavern owner from furnishing alcohol to a visibly intoxicated person. This does not mean
that the tavern owner must assess the medical condition of a patron in conjunction with the patron's level of
intoxication. Rather, the tavern owner is simply responsible for assessing visible intoxication, regardless of the
physical ability and condition of the patron. Furthermore, evidence from toxicologist regarding BAC was admissible
as evidence for whether patron displayed visible signs of intoxication when served alcohol.
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APPENDIX C: SIP Case Law
NEW YORK
Citation Analysis
Sorensen v. Denny Nash Inc.,
249 A.D.2d 745, 671 N.Y.S.2d
559 (1998).
It was not established that witness' professional experience as a physician specializing in forensic pathology sufficed
to support an inference that he is qualified to render an opinion correlating driver's blood alcohol content to visible
signs of intoxication, for purposes of establishing bar's Dram Shop Act liability.
Proof of a high alcohol count in an individual served alcohol does not, without more, provide a sound basis for
drawing inferences about that person's appearance or demeanor, for purposes of Dram Shop Act liability.
Circumstantial evidence was insufficient to establish automobile driver's visible intoxication during time period that he
patronized bar, for purposes of imposing Dram Shop Act liability on bar owner, though affidavit of forensic pathologist
inferred that because driver, who later went to another bar, consumed certain amount of alcohol and exhibited signs
of intoxication when he struck pedestrians, he must have been intoxicated during period three hours before when he
was patronizing bar and, more importantly, appeared so.
T.K.O. Enterprises Inc. v. New
York State Liquor Authority,
A.D.2d 646, 641 N.Y.S.2d 133
(1996).
Substantial evidence supported State Liquor Authority's determination that bar and grill, which had on premises liquor
license, served alcohol to visibly intoxicated individual in violation of the law; police officer testified that, while he was
standing at entrance to bar, he observed, from a distance of about five to ten feet and for about 15 minutes, an
extremely intoxicated man who had one drink in front of him and who was being served bottle of beer by bartender
and testimony of bar's witnesses established that they knew that the man was intoxicated.
Adamy v. Ziriakus, 231 A.D.2d
80, 659 N.Y.S.2d 623 (1997).
Although there was no direct proof in dram shop action against restaurant that patron was served alcoholic
beverages while he was visibly intoxicated, visible intoxication was sufficiently proved by circumstantial evidence,
such as testimony of police officers who observed patron in intoxicated condition less than one hour after he left
restaurant, by amount of alcohol in patron's blood approximately 90 minutes after accident, and by opinion of expert
that blood alcohol content (BAC) of driver while he was at restaurant was at least .2% and thus he would have been
visibly intoxicated.
Roy v. Volonino, 262 A.D.2d
546, 694 N.Y.S.2d 399 (1999).
Affidavits of a forensic toxicologist and an eyewitness were sufficient to raise a triable issue of fact as to whether a
tavern patron was visibly intoxicated when the defendant tavern served him alcohol during his 30- to 45- minute visit
there, which was sandwiched between his visits to another tavern; accordingly, defendant was not entitled to
summary judgment dismissing a Dram Shop Act claim arising out of the patron's involvement in a fatal automobile
accident occurring shortly after he left the other tavern for the second time.
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APPENDIX C: SIP Case Law
NORTH DAKOTA
Citation Analysis
Jore v. Saturday Night Club,
Inc.,
227 N.W.2d 889 (1975).
Fact that term “under the influence of intoxicating liquor” has a specialized, well-defined meaning would indicate that,
through its omission from Dram Shop Act, legislature did not intend to embody its meaning therein. Instruction in
dram shop action that a person is intoxicated when his manner is unusual or abnormal or his intoxicated condition is
reflected in his walk or conversation, when his ordinary judgment and common senses are disturbed, when his will
power is temporarily suspended, and these or similar symptoms result from use of alcoholic beverages and become
reasonably discernible to a person of ordinary experience was not erroneous in absence of a clear statement from
legislature as to definition of “intoxication.”
Meshefski v. Shirnan Corp.,
385 N.W.2d 474 (1986).
A vendor of alcoholic beverages should not deliver alcoholic beverages to a person who exhibits outward
manifestation of intoxication, regardless of the cause of the intoxication.
OKLAHOMA
Citation Analysis
Copeland v. Tela Corp. 996
P.2d 931 (OK 1999)
In a dram shop case, indirect evidence, including testimony from a police officer regarding a patron’s intoxication after
leaving the premises, the conditions of the establishment that made observation difficult, and the lack of RBS training,
may be sufficient to establish that a server knew or should have known of the patron’s visible intoxication. The lack of
direct evidence that the server observed visible signs of intoxication is not required. “A commercial vendor's self-
imposed ignorance concerning the intoxication of its patrons should not operate in its favor to prevent a jury
determination of that issue.”
PENNSYLVANIA
Citation Analysis
Ashman v. Com.,
Pennsylvania Liquor Control
Bd., 542 A.2d 217, 116
Pa.Cmwlth. 580 (1988).
Testimony of Liquor Control Board enforcement officer was sufficient to establish that licensee served visibly
intoxicated person in violation of Liquor Code; officer testified that patron at licensee's bar used slurred speech, had
glassy eyes, and experienced difficulty walking.
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APPENDIX C: SIP Case Law
TEXAS
Citation Analysis
Campos v. State, 623 S.W.2d
657 (1981).
Since V. T. C. A., Alcoholic Beverage Code § 101.63 proscribing knowingly selling alcoholic beverage to intoxicated
person does not define intoxicated and the term is not otherwise statutorily defined for purpose of statute, the word is
to be given its commonly understood meaning.
El Chico Corp. v. Poole, 732
S.W.2d 306 (1987).
"Intoxication" within duty of liquor licensee not to serve an intoxicated person pursuant to V. T. C. A., Alcoholic
Beverage Code § 101.63 refers to a condition when, due to the consumption of alcoholic beverages, a person suffers
impaired mental or physical faculties and resulting diminution of the ability to think and act with ordinary care.
VERMONT
Citation Analysis
In re Con-Elec Corp.,
168 Vt. 576, 716 A.2d 822
(1998).
The Board found that "the licensee had permitted [the patron] to consume vastly excessive amounts of alcoholic
beverages and to remain on the premises for far too long for her safety and for the safety of the general public."
Licensee argues that the patron was "shut off" as soon as her intoxication was noticed. Further, licensee argues that
the patron failed to cooperate with licensee's attempts to send her home and that licensee "did all that it could" to
remove her in a timely manner, and that the Board failed to consider the licensee's efforts. The evidence supports the
Board's findings and its conclusion that the licensee allowed an intoxicated patron to remain on the licensed
premises. Regardless of the efforts made by licensee, it was within the Board's discretion to decide that those efforts
were too little too late and that the licensee had failed in its duty to prevent the loitering of an intoxicated person. We
find no error.
In re Tweer, 146 Vt. 36, 38,
498 A.2d 499, 500-01 (1985)
The prohibition of sales to a person "apparently" under the influence of liquor requires that the purchaser's
intoxication be observable. Moreover, the observation must be made by the one selling the liquor. It is not enough
that the purchaser's intoxication was apparent to someone else. The seller, of course, is not permitted to close his
eyes to that which is apparent. The seller has a duty to observe that which is observable to a reasonable person. See
People v. Johnson, 81 Cal. App. 2d Supp. 973, 975, 185 P.2d 105, 106 (Dep't Super. Ct. 1947).
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APPENDIX C: SIP Case Law
WEST VIRGINIA
Citation Analysis
Bailey v. Black, 394 S.E.2d 58,
183 W.Va. 74 (1990).
Under W. Va. Code, § 60-7-12 proscribing private club liquor licensee from selling alcohol to anyone who is physically
incapacitated by drinking, language "physically incapacitated" requires that seller or its agents be capable of knowing
that buyer is drunk; standard is that buyer exhibited some physical sign of drunkenness, such that reasonably prudent
serving personnel could have known that buyer was drunk. Bailey v. Black, 394 S.E.2d 58, 183 W.Va. 74 (1990).
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APPENDIX D: Telephone Interview Protocol
LAWS PROHIBITING SALES TO INTOXICATED PERSONS
Enforcement Agency Telephone Interview Protocol
Interviewer:
Date:
State:
Agency Name:
Address:
License or Control State:
Dual Licensing Authority? (yes/no)
Hi, my name is _______________________. I am working on a grant for the National Highway
Traffic Safety Administration to analyze laws prohibiting sales to intoxicated persons.
The purpose of my call is to ask you some questions about the laws in your state so that I can
develop a better understanding of the statutes and regulations that pertain to prohibiting sales
and/or service of alcohol to intoxicated persons.
I have provided you with a chart, listing the laws, penalties and cases we have identified in your
state regarding sales to intoxicated persons. I would like to go over that chart with you and then
ask some follow-up questions.
Part 1: Confirming Information on the Charts
(These questions follow the chart provided to the informant.)
1.  Have you had a chance to review the chart we provided listing the various laws for sales
to an intoxicated person? (proceed even if they haven’t had a chance)
2.  In the top chart, can you confirm if this is the correct statute(s) (or regulation(s))
prohibiting selling alcohol to an intoxicated person?
3.  Under the box for “DEFINITION on INTOX”, we noted if there were any special
statutory definitions or information provided in case law to help define intoxication OR
we just pulled the language from the statute/regulation describing the type of patron (e.g.
visible intoxication, obvious intoxication, intoxicated person). Are you aware a different
definition or of any rulings or statutory definitions for “intoxicated” that we missed?
4.  Is this same definition used in Administrative Proceedings?
5.  Under the box for “STANDARD OF PROOF”, we identified any laws or case-law
dealing with the culpable mental state of the seller. From your knowledge, does your
statute require a culpable mental state for a person to be found guilty of the law that
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APPENDIX D: Telephone Interview Protocol
forbids serving alcohol to an intoxicated person? For instance, must they know or
recklessly disregard that the person is intoxicated, or can there be a violation if they
“should have known”?
6.  Are these the same standards of proof used in administrative actions?
7.  In the next chart we identified the penalties. Are these the correct statutory and
administrative citations for the penalties?
8.  Are you aware of any additional penalties? Can you list those penalties and citations?
9.  In the final chart, we have identified some of the case-law that discussed the prohibition
of sales to intoxicated persons. Do you recognize these cases?
10. Do you agree with the summary of the case law listed here?
11. Are you aware of other cases that discuss the sales to intoxicated prohibition?
12. Are there any laws, regulations, or cases not on this chart that you think I should be
aware that deal with prohibiting sales to an intoxicated patron?
Part 2: Administrative Proceedings
13. [If selling to an intoxicated person is criminal – see Part 1] Does your state law permit
your agency to bring a criminal complaint in court? If so, explain procedures.
14. Can violations of [specify law from Part 1] lead to administrative action?
15. Who makes the decision within your agency to bring a administrative complaint or
request for action against a person or business for overservice?
16. What is the forum (e.g., ALJ, central hearings bureau, licensing agency hearing officer,
liquor commission or liquor board, etc.)?
17. (If there is more than one statute or regulation) Which specific statute, regulation, or
local ordinance is typically applied to these cases?
18. Please briefly describe the administrative process.
19. What must be proved in order to establish a violation?  For example, must your reporting
person make personal observations to bring a case, such as witnessing the person for a
period of time; witnessing an employee serve alcohol directly to a customer, or
witnessing another triggering event?
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APPENDIX D: Telephone Interview Protocol
20. Assuming that the agency establishes a prima facie case, what affirmative defenses are
available (e.g., staff was trained)? (Ask for citation in the law to these defenses)
21. Does your agency have exclusive jurisdiction to bring an administrative case against a
licensee?
22. (IF NO to 21) If you don’t have exclusive jurisdiction, please describe how complaints
can be brought administratively by other persons or agencies.
23. Are administrative cases brought against the employee who served the intoxicated patron,
the licensee, or both?
24. Can we find the written findings on the outcome of these cases?  Are the cases and their
findings posted anywhere that we can access?
25. Has the hearing agency established any rulings or procedures that outline what the
complaint must contain in order sustain an action for selling to an intoxicated patron?
26. Are there any special administrative complaint filing procedures required for providing
the licensee with adequate notice and/or due process.
27. (IF NO TO 26) Why not?
28. (IF YES TO 26) Where are these procedures published?
Part 3: Administrative Penalties
29. Going back to the penalties, are the penalties described in the table the correct range of
penalties that can be imposed by the hearing authority for a first offense?
30. What is the typical penalty applied to a case that does not have significant mitigating or
aggravating factors?
31. Does the administrative penalty process provide for enhanced penalties if a licensee
engages in repetitive behavior?
32. If the penalties are not clearly prescribed, then how are penalties fashioned by the
hearings officer or board?
33. Does the hearing officer or board have the authority to impose sanctions other than
license suspension and/or fines (e.g. can the licensee also be ordered to send employees
to training, can the penalty be held in abeyance to allow the licensee to engage in
independent 3
rd
party monitoring, etc.)?
34. Is there data (on a quarterly or annual basis) available regarding the number of violations
for a licensee selling to an intoxicated patron? If so, who maintains it?
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APPENDIX D: Telephone Interview Protocol
Part 4: Local Jurisdictions
35. To your knowledge, are there any local ordinances in your state that make sales to
intoxicated persons a criminal or civil offense?
36. Does your agency refer such administrative cases to local jurisdictions for possible
prosecution?
37. If local authorities with licensing authority have the ability to impose penalties for sales
to intoxicated persons, are their penalties reported to the state agency or authority?
38. If local hearings are allowed, can the state conduct its own hearing and impose a separate
penalty for the same violation?
Part 5: General Questions
39. Does your agency keep statistics of any kind with respect to the referral of police cases
involving alcohol overservice (sales to intoxicated persons) involving a licensee?
40. Are you aware of any innovative programs to enforce these laws currently being
implemented out in the field (e.g., the Washington place of last drink program)?
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APPENDIX E: On-Site Agency Interview Protocol
LAWS PROHIBITING SALES TO INTOXICATED PERSONS
Enforcement Agency On-Site Interview Protocol
I. Enforcement of SIP laws:
a. Is the sale of alcohol to intoxicated persons a significant problem in your state? Yes | No
i.  If yes:
1.  Why do you think this is so? Please describe the problem.
2.  What are the consequences of this problem for the public and law enforcement?
b.  In your opinion, has the enforcement of SIP laws been given sufficient priority in your state?
Yes | No
i.  If yes, what has facilitated the enforcement of SIP laws in your state?
ii.  If not, what are the barriers to enforcement of SIP laws?
1.  How was this accomplished (what programs are in place to facilitate
enforcement, such as POLD, etc.)?
c.  If more funds and resources were made available, would you expand your SIP enforcement
operations? Yes | No
i.  If yes, how would you propose to expand the enforcement operations?
ii.  If yes, please make an estimate as to the quantity/type of funds and resources needed for
expansion.
II. Special SIP enforcement programs:
a.  What programs have been implemented to enforce SIP laws?
b.  Please describe their history:
i.  When did they start;
ii.  Why were they implemented;
iii. How are they implemented;
iv.  Who implements them?
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APPENDIX E: On-Site Agency Interview Protocol
c.  Has/have the program(s) been effective? Yes | No
i.  What aspect(s) of the program has/have made it effective?
ii.  If there are problems, what have they been and how do you think they can be overcome?
d.  Does implementation require coordination with other state and/or law enforcement agencies?
Yes | No
i.  If so, which agencies, and how are the programs coordinated?
ii.  How effectively has this coordination worked?
1.  If the coordination has not worked effectively, what barriers or problems exist to
prevent the coordination?
2.  What could be done to improve coordination?
e.  Do you have data on the implementation of the program, and has it been utilized to evaluate the
program or for other purposes? Yes | No Please describe.
i.  How extensive and detailed are the data—e.g. does the database include all data since
inception of the program?
ii.  How available are the data; are they in a readily accessible format? Yes | No
1.  Please describe:
iii.  If it hasn’t already been used to evaluate the program, do you think that it could be useful
for demonstrating the effectiveness of the program to policymakers, or for evaluating
problems?
f.  Have other states used your program as a model for their own programs? Yes | No
i.  If yes, please explain.
III. Legal Process:
a.  Wording of law:
i.  Does the wording of the SIP law in your state make it difficult to enforce in any way?
Yes | No
ii. If yes, please describe.
iii. Could the wording of the law be expanded or rewritten to make it more effective?
Yes | No
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APPENDIX E: On-Site Agency Interview Protocol
1.  If yes, please describe.
b.  Administrative hearing process:
i.  Please describe the administrative hearing process for the prosecution of SIP cases
against licensees:
1.  What are the typical steps of the process?
2.  How long does the process usually take, from initial citation to final resolution?
ii. Do you think that the hearing process could be improved? Yes | No
1.  If yes, how could it be improved?
c.  Requirements for evidence:
i.  What are the requirements for evidence in order to successfully prosecute a SIP case
against a licensee?
ii.  Do these requirements create any barriers to successful prosecution, and if so, how so?
IV. Penalties:
a.  In your opinion, are the penalties mandated for violations of this law sufficient? Serve as a
deterrent? Insufficient?
i.  If penalties do not serve as a deterrent, why is this so, and what could change to make
them more effective?
b.  Are penalties discretionary? Yes | No
i.  If so, do you think that they are imposed in such a way as to deter future violations?
ii.  If so, are they most frequently imposed at the minimum level? Maximum level? Neither,
depends on case.
iii.  If not, why not?
V. Other comments:
a.  Do you have any other comments that you would like to add on the topic of SIP enforcement?
Thank you!
117

Laws Prohibiting Alcohol Sales
To Intoxicated Persons
Legal Research Report

DOT HS 811 142  
June 2009  

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