NY State Assembly To Debate ‘Intoxication’ Definition

Assistant Speaker Felix Ortiz (D-Brooklyn) said he would re-introduce a proposal to change New York’s alcohol intoxication threshold from .08 to .05, based on a recent National Academy of Sciences report that made the same recommendation.

Brushing off criticism from restaurant owners and lobbying groups which claimed that the proposal would effectively shut down many small businesses, Mr. Ortiz said that the proposal, “at the end of the day, [is about] saving lives.” Furthermore, the bill’s critics “should look at it on the other side” and realize that “be part of a positive impact and a positive result and answer to a problem that has been taking away our families for a long time, he added. Canada recently lowered its BAC threshold to .05 and has already seen a dramatic reduction in alcohol-related fatalities, noted Albany County Chief Sheriff’s Deputy Kerry Thompson.

In 2017, Utah became the first state in the Union to lower its BAC threshold to .05. That law takes effect in December 2018.

Liability Effects of a Lower BAC Level

The amount varies based on several factors, including age, weight, and alcohol tolerance, but a .05 BAC is usually about two drinks for women and three for men. At the lower threshold, more victim/plaintiffs in New York drunk driving claims could take advantage of the negligence per se shortcut. Under this doctrine, tortfeasors (negligent drivers) are liable for damages as a matter of law if they:

  • Violate a safety statute, such as the DUI or speeding law, and
  • This violation substantially causes the victim/plaintiff’s damages.

The shortcut could apply even if the tortfeasor is not actually convicted of DUI, because in New York, the jury resolves any and all factual issues in the case.

A change could affect vicarious liability as well. Under New York’s dram shop law, clubs, restaurants, bars, and other commercial alcohol providers are liable for damages if their intoxicated customers negligently injure another person. Liability attaches if the tortfeasor was:

  • Under 21, or
  • Visibly intoxicated.

The injury must also be a foreseeable consequence of the sale. Since it is foreseeable that someone will open an alcohol container and drink on the way home, the law also applies to packaged alcohol providers, such as grocery and convenience stores.

If the legislature changes the definition of “intoxicated,” the definition of “visibly intoxicated” obviously changes as well, so it will be easier for victim/plaintiffs to establish vicarious liability. Third-party liability is especially important in catastrophic injury cases, which are common in alcohol-related claims.

The Effect on Damages

Serious injury victims in New York are entitled to compensatory damages for both economic losses, such as property damage, and noneconomic losses, such as pain and suffering. A lower threshold would not change these rules.

However, a .05 limit may make punitive damages easier to obtain. Under current law, a .24 BAC is three times the legal limit, an amount most jurors would consider excessively drunk. Under Assemblyman Ortiz’s proposal, a .15 BAC would be three times the legal limit.

To obtain punitive damages, victim/plaintiffs must produce clear and convincing evidence that the tortfeasor intentionally disregarded a known risk. A damages cap may apply, in some situations.

Alcohol-related crash victims may have an even easier time winning their claims with a lower BAC threshold. For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. Even if they have no money or insurance, a lawyer can connect victims with doctors.