Two Green Valley bars are facing possible civil sanctions as the result of a DUI-related wrong-way crash that killed four people on Interstate 19 in May, but statistics show it is rare for the people who serve the alcohol to face criminal charges.
Amado resident Tambra Hoskins, 52, killed herself and three members of a Tucson family shortly after midnight May 5 while driving with an alcohol level of 0.318. According to Arizona Department of Liquor records, Hoskins had been at three bars earlier that evening and drank at least five shots of Fireball cinnamon whisky, three Vodka Tonics and a drink containing two unknown liquors.
The department is seeking civil sanctions against one of the bars because it alleges it allowed Hoskins, an employee, to drink while on duty and to leave the premises with alcohol. It is seeking sanctions against another bar because they allege the bartender allowed Hoskins to stay on the premises despite being drunk and sold her drinks despite her appearing to be inebriated.
The department is not, however, seeking criminal charges against the bartender.
According to Arizona Revised Statute 4-244(14), it is a misdemeanor crime for a licensee or other person to serve, sell or furnish spirituous liquor to a disorderly or obviously intoxicated person.
However, according to the Arizona Supreme Court, law enforcement agencies across the state have cited just 36 people under the statute in the last five years.
Only one of those people was prosecuted locally. An employee of a drive-through liquor establishment in Tucson went through a diversion program, according to Pima County Justice Court records.
Supreme Court records show no one has been cited under the statute in Oro Valley, Sahuarita, Marana, South Tucson or the City of Tucson in the last five years.
Pima County Sheriff's Department Sgt. Brett Bernstein, who heads up his department's DUI unit, said the Department of Liquor has asked PCSD to refer liquor law violation cases to them for investigation. The department has more time and resources to devote to such cases, he said.
Department of Liquor officials have explained it makes more sense to seek civil remedies against drinking establishments rather than pursue criminal charges against individuals because of the punishment, Bernstein said. Bartenders only risk being convicted of a misdemeanor. Bars and restaurants can be shut down.
Law enforcement officers investigating DUI-related crashes also don't have time to investigate misdemeanor crimes in the hours after the incident; they are focused on gathering evidence at the crime scene so they can pursue felony charges, he said.
Not only is overserving just a misdemeanor, Bernstein said it is difficult to prove. One must be able to show that the bartender knew or should've known the patron was drunk, and without videotape evidence or a bartender's confession, the case may not get far.
Sahuarita Police Chief John Noland he's not sure why no cases have been filed in Sahuarita Municipal Court. He speculated it could be a lack of evidence. He expects his officers to ask suspected drunken drivers where they've been and how long they've been drinking, but said suspects have the right to remain silent, Noland said.
Deputy Pima County Attorney Bruce Chalk, who oversees the office's vehicular crimes unit, also noted the Department of Liquor is the agency specifically authorized to pursue liquor law violations. However, Department of Liquor records show that over the last five years, the department has only sought that charge against an average of 12 bartenders annually statewide.
Jeffery Trillo, assistant director of the licensing and administration division of the Department of Liquor, said there are 14 sworn officers investigating liquor law violations statewide and three of them are supervisors.
Sgt. Wes Kuhl said the department spends most of its time investigating complaints about establishments where acts of violence have taken place, underage drinkers or underage people who have created false identities. They also investigate wrong-way crashes when it's believed impairment is involved, Kuhl said. They often learn about them from other law enforcement agencies, the media and from civil attorneys.
When asked if the Department of Liquor is understaffed, Trillo said that was "definitely a policy question."
"I understand the question and why you'd ask it," he said.
Tucson attorneys Noah Van Amburg and Elliot Glicksman are not surprised by the lack of criminal citations being filed. The two attorneys are well known in the legal community for filing what are called "dram shop" lawsuits – cases in which drinking establishments are sued when a drunken driver kills or maims someone. Historically, a dram was a small drink of liquor.
Over the last five years, they've filed about 15 civil lawsuits against bars and restaurants throughout the state.
Although Noland and Bernstein disagree, Van Amburg said that, in his experience, the officers in DUI cases don't ask suspects what they were doing prior to the crash because they don't need to know.
All officers and prosecutors need to prove their cases is the amount of alcohol in their blood, he said.
When families come to them in the hopes of filing a lawsuit, the attorneys said they hire investigators to research the drunken driver's timeline.
There are two ways to prove a bar or restaurant is responsible for a DUI-related crash, the attorneys said. One is to prove to a jury the defendant was obviously intoxicated based on their signs and symptoms and yet the bar/restaurant continued to serve them. The other is to argue the bartender knew or should have known the defendant was intoxicated – whether he or she was showing symptoms or not – based on common sense.
"So, if you’re serving 12 shots in an hour and they’re not showing any signs because they’re an alcoholic, you should still know that they’re impaired by your training," Van Amburg said. "You know that 12 shots an hour means an average male who’s 175 pounds is going to have a BAC of well above the legal limit."
Very few of their cases ever get to a jury because of the risks of going to trial, the attorneys said. In Arizona, jurors in such cases are asked to allocate blame.
"It's a big deal because it’s so arbitrary. A jury can say, 'Hey, we think the bar overserved, but we’re going to put 95 percent of the fault on the driver and 5 percent on the bar,'" Glicksman said. "The bar owner could be some schmoe with a $15,000 policy."
It's rare for jurors to assign more than 50 percent of the blame to the bar or restaurant because many people have strong beliefs about people accepting personal responsibility for their actions, he said.
And, since that's the case, there are establishments that get sued over and over again because the cost of a judgment doesn't compare to the amount of money they take in, the attorneys said.
"For them that’s their cost of doing business. It’s no different from the Ford Pintos in the '70s; somebody makes an assessment that the cost of business is OK for a certain number of lives that are lost based on their profit margin," Van Amburg said.
It also doesn't help that most settlements are kept confidential so there's no pressure on businesses to change their methods of operation, he said.
Most of the establishments they sue simply don't monitor how much their patrons are consuming and they argue that's impossible to do, Glicksman said.
"We’ve got cases against strip clubs, adult gentleman’s clubs, who go, 'We don’t keep track of how much people drink, how can we do that? That’s impossible.' But they’ve got a guy with a clipboard keeping track of every dance that all 35 different dancers who are working that night at different tables in different rooms are doing because they get a cut of that," he said.
Plus, science comes into play.
"There are charts. You can go online and get a (blood alcohol content) chart and see if a person is 200 pounds and in an hour they have five drinks they’re going to be over 0.08," Glicksman said. "I don’t expect bartenders to be carnival barkers and guess people’s weight. However, on the other hand, they can tell someone is big, medium and little."
Also at play in Arizona is the fact bartenders are not required to take classes about alcohol and state statutes, although they are available, the attorneys said.
"There are some (bartenders) who simply do not have the knowledge," Van Amburg said. "A recent bartender we deposed could not tell us whether the legal limit for operating a motor vehicle was .05, .08, .10, .30. She had no idea what it could be and here she is serving people alcohol."
The problem becomes worse when you have people who aren't old enough to drink legally and have limited experience serving alcohol, he said. The drinking age in Arizona is 21, but 19 year olds can tend bar. They may not know what inebriation looks like, Van Amburg said.
Requiring servers to attend classes is one way to decrease the number of DUI-related crashes, Van Amburg said. He'd also like to see bars and restaurants post charts pertaining to blood alcohol levels and the number of drinks needed to get to 0.08.
"I have to have a business license posted in a conspicuous place on my wall, something that’s completely not important," he said. "Why would it be too hard to have a BAC chart posted at the bar where the bartenders are doing their business and are reminded they need to observe these things about the people they are serving alcohol to. Those are two simple steps that can make a difference. They seem like no-brainers to me."
Some bars and restaurants make sure multiple servers aren't serving the same table, Van Amburg said. If more establishments did that, it would help them make sure people weren't being overserved.
Van Amburg would also like to see crash investigators be given the time to investigate drunken drivers' pre-crash activities.
"If the bars knew the officers were going to come in and investigate that and check on that and if there was a more credible threat of criminal prosecution of the bar, I absolutely believe it would have a strong deterrent effect," he said.