Beyond Melanie's law
IN THE DEBATE over the passage of Melanie's law, members of the defense bar were unnecessarily demonized because they were initially not willing to see passage of very severe penalties for drunken driving. Ratcheting up criminal penalties and making it easier to convict accused persons are not the only approaches to deterring drunken driving. Indeed, some may argue that such efforts have failed and will continue to fail. Deterrence of drunken driving ought to be more broadly focused and should look at the source of the problem.
There is a wider range of responsibility than just the drunk driver. According to published reports, the driver convicted in Melanie's tragic death was drinking in a public establishment prior to getting into an automobile and driving it. What is the responsibility of those who provide the venue for others to consume alcohol to the point of intoxication and then drive? The time has come to focus not just on the criminal side of the issue but the civil side as well.
In Massachusetts, the owner of a bar or restaurant that is licensed to serve alcohol cannot be held liable for injuries to victims of drunk drivers unless the victims are able to prove that the establishment served alcohol to the drunk driver knowing the person was already intoxicated. There is a special statute that makes it more difficult for a victim to make a case against the bar owner. In most cases these are substantial obstacles for victims to overcome, even in cases where the drunk driver admits to drinking at a particular establishment. Worse, many establishments fail to purchase liability insurance, or, if they do, the limits are low and innocent victims are never adequately compensated.
A homeowner is not liable for the injuries caused by persons who become intoxicated in his home unless it is established that the homeowner served the alcohol to an already intoxicated guest. Homeowners who hold BYOB parties escape all liability even though they know that persons on their premises are drinking to excess and even though they know that these drunks will leave the home and drive an automobile. The law imposes no duty on the homeowner to stop such individuals from driving.
And what of the many other venues well known for excessive consumption of alcohol by members of the motoring public? In most cases alcohol consumption is allowed and actively promoted. Tailgating at college and professional football games is but one example of encouraged alcohol consumption at the back end of an automobile later to be driven away after the event.
If we really want to enact legislation aimed at drinking and driving we need to focus on all aspects of the problem. The special statute that makes it more difficult to bring legal action against taverns, bars, restaurants, golf clubs, and other licensed establishments should be abolished. In its place we should write legislation that creates a presumption of responsibility if the injured party proves that the drunk was served at the establishment. We should write legislation that makes those who either serve alcohol or allow persons to drink alcohol on their premises liable to victims who are injured or killed by persons drinking to the point of intoxication at these locations. Legislation could require license holders, distributors, and manufacturers to air public service announcements warning of the dangers of excessive consumption, the potential criminal penalties, and the availability of substantial civil remedies. Make the purchase of liability insurance mandatory.
In spite of years of warnings concerning the hazards of smoking, deterrence and behavioral change were achieved only after it cost the tobacco industry billions of dollars. Alcohol is no different. Drunk drivers should be held accountable for their actions. However, deterrence comes in many forms. A reduction in the carnage may be more likely realized if those who provide the alcohol or the venue for its consumption know they will be held accountable for the actions of those to whom they serve alcohol or those they permit to drink alcohol on their premises.
Edward P. Ryan Jr. is a former president of the Massachusetts Bar Association. 
