By Carter Bundy
There’s nothing that defines
Assaults on the rule of law don’t always come in the form or partisan politics or high-profile leaders, as in the Domenici-Wilson-Iglesias case. Sometimes, attacks on the rule of law come disguised as sympathetic plaintiffs who have suffered unimaginable tragedy.
One of the primary characteristics of the rule of law is that the law is not arbitrary or random. But a recent lawsuit by lawyers representing the victims of a terrible drunk-driving accident threatens that crucial idea. There is nothing insignificant or small about the tragedy.
Two people were killed by a driver who was allegedly well over the legal limit for blood alcohol content (
The driver should be held to account as fully as possible, and deserves what he gets if the allegations are all true. He made a series of terrible decisions, culminating in his final decision to get behind the wheel. Even if he was under the influence when he made his ultimate bad decision, the choice to get drunk and take the wheel was his, and he cannot escape responsibility or accountability for his actions.
Hard cases make bad law
There’s a saying in the legal world: Hard cases make bad law. This is as difficult and sympathy-inducing a case as you can have. My heart goes out to the victims’ families and friends, a sentiment shared by every New Mexican. No case, though, no matter how heart-wrenching, should lead us to betray our basic principles of law.
The problem is the inclusion of five bars as defendants in the lawsuit. Lawyers who bring tort actions are critical to our rule of law. They are indispensable in holding wrongdoers responsible for their bad actions and creating a safer society for all of us. But in the wrong circumstances, they can actually undermine the rule of law. This is one of those cases.
The theory of the case is that the five bars were negligent in serving the driver. Think about the very underlying premise — five bars? The driver also allegedly drank prior to having drinks in downtown
Further, if this case succeeds, the de facto legal standard will be potential liability for any establishment that serves a drink putting the customer over the legal limit of 0.08 percent. There may be a “reasonableness” standard associated with it, but I guarantee you that no one on the planet can comply with that law under any circumstances.
There are many factors to blood-alcohol content, including weight of the patron, how much and when they’ve most recently eaten, sleep, physical fitness, how quickly the drinks are consumed, etc. This lawsuit asks bars to only serve if they know for certain that a patron won’t go over the limit with the next drink.
Impossible standards
Given the above factors, as few as two drinks could put some customers over the legal limit even if they didn’t have a single drink beforehand. Therefore, in order for all bars to comply with a new de facto judicial standard of not serving anyone a drink that could put them over 0.08 percent, there would have to be a statewide computer network indicating how many drinks each patron has had. And each bar would have to monitor each individual drinker.
Which is itself a logistical nightmare. There could be no table service, because waitstaff couldn’t be sure that drinks weren’t being purchased for someone else at the table. Of course, there couldn’t be bar service either, because the bartender has no way of knowing for whom each drink is being purchased. And somehow the bar would have to guarantee that the patron didn’t have alcohol in his car or at home. Uh huh.
The resulting legal standard — and it may be a legitimate one for the Legislature to pursue, but it should be clearly spelled out — is that no one in a bar can ever be over 0.08 percent. No one. After all, it’s easy to lie about staying with a friend who lives within walking distance. It’s easy to promise that you have a designated driver, and you might even have one. Of course, you or the driver may also choose a different course of action later in the night.
If this lawsuit succeeds against the bars, there’s no possible way to comply with this new judicial standard. So people who want to stay in business will have to break the law, leaving them exposed to civil and criminal penalties all based on random actions that are well beyond their control.
Some laws bars can and should reasonably comply with, like keeping out minors. Being held liable for drunken-driving deaths simply based on the fact that someone had a drink in their bar and hours later made an awful decision is not one of them.
It doesn’t solve the problem of DWI, it doesn’t bring the victims back and, worst of all, it’s a serious assault on the underpinnings of the rule of law with its arbitrary and random punishment of legitimate, legal behavior.
Bundy is the political and legislative director for AFSCME in