Alcohol and the Law

Francesca M Brett MD; FRCPath; FFPath: MSc (FM)

• Ireland has one of the highest alcohol consumption rates in Europe.

• Compounded by ‘binge drinking’ culture.

• No national guidelines on blood alcohol testing in the emergency room.

• 1 in 4 patients attending A & E in the Dublin area, have alcohol related diagnoses.

• 1 in 8 patients are clinically intoxicated at the time of attendance

Alcohol interaction with the Alcohol interaction with the lawlaw

1. Drink driving offences

2. BAC and insurance claims

3. Liability with respect to the intoxicated

4. Intoxication as a defence to criminal behaviour

1. Drink driving offences

• Principle legislation relating to road safety in Ireland is the Road Traffic

Act 1961

• Updated and added to over years

• 0mg/dl in Hungary, Romania, Russia, Turkey

• 20mg d/l in Sweden

• 50mg/dl in Finland, Australia, France, Netherlands

• 80mg/dl in Ireland, Canada, New Zealand, and half US

• 100mg/dl in parts of US

• RTA 2006 ‘random breath testing’ but only at authorised checkpoints

Prior to RTA 2006 Gardai had to be of the opinion that someone had:

• committed a road traffic offence• had been involved in an RTA

• form the opinion that the driver had consumed alcohol

Before being legally entitled to breathalyse a driver

NOW with RTA 2006

Gardai can breath-test any driver at authorised checkpoints

• Authorisation is given by Garda (not below Inspector) and specifies:

• Date and place• Hours of operation

2. BAC and insurance claims2. BAC and insurance claims

• 20 year old non national admitted head injury

• Found at bottom of stairs (4.30 am ) following a party

• “Allegedly”consumed excessive amount of alcohol

• Put to bed unsteady

• BIBA at 2pm GCS 13

• T/f to neurosurgical unit

Pt died 11 days after admission

Insurance firm unhappy to pay for repatriation of the body as “alcohol related” injury

CT large left frontal contusion and right parietal contusion

1. Does the physician in the emergency have the right to take BAC ??

2. If BAC taken on admission and the patient dies 11 days later should the pathologist seek the admission BAC and include in

report???

3. What are the consequences of informing insurance firms???

Does the physician in the emergency have the right to take BAC ??

• In a conscious patient it is clear cut – patient can consent

• Unconscious not clear cut

• In UK BAC can only be taken if the attending physician agrees

• In USA forensic BAC samples can be taken

• In Ireland no clear policies

Emergency Department Survey• 4 major Emergency Departments

• No hospital guidelines on BAC testing.

• “BAC” not taken in the majority of cases even when alcohol is a suspected contributary factor.

• 4 main reasons cited

1. Not of benefit to patient or management of HI.2. Concern undue attention to or over interpretation of high BAC might

lead to misinterpretation of altered mental status or neurological deterioration.

3. Apprehension re legality of consent for BAC. 4. Contamination of blood sample by ethanol containing swabs.

• .

What are the consequences of informing insurance What are the consequences of informing insurance firms???firms???

• Uniform accident and sickness policy provision law (UPPL) USA

• “Intoxicants and Narcotics” –The insurer shall not be liable for any loss sustained or contracted in consequence of the insured’s being intoxicated or under the influence of a narcotic unless administered on the advice of a

physician”

• Some centres in USA do not screen for BAC because the information can be used by insurers refuse payment

• BUT • If trauma surgeon does not document alcohol intoxication it is unlikely that

the insurance company will detect it by other means

• Trauma centres “safe havens” for intoxicated drivers

Oliver Bishop 111 and Oliver Bishop IV v National Health Insurance Company.

USA 2002

• 19 yr old whilst driving collided with a stone wall Incurring $242,235.45

• Insurance company refused payment as policy excluded coverage “for any loss incurred while [the insured was]

legally [intoxicated]

Defining intoxicated as

“a level of blood alcohol content that is specified in the laws defining

intoxication in the state where the loss or cause of loss occurred”

Blue Cross and Blue Shield of Florida Inc v Steck 2001

• A lady with BAC 3 times the legal limit stepped onto highway and was struck by a car

• Insurance company refused to pay bills $350,000 as injuries caused by alcohol excluded

• Lady won on appeal when court ruled that drunkenness exclusion only applied to direct effect of alcohol such as

“acute alcohol poisoning or liver damage” not indirect effects such as “behaviour when intoxicated”

3. Liability in respect of the intoxicated3. Liability in respect of the intoxicated • 60 yr old male found on side of road

• According to close relative was at a party “dancing and in great form”

• Left at 11.30pm to walk home

• Found by gentleman lying on his back – as it was raining hailed a taxi but refused to get in

• Called ambulance but victim wanted to go home ambulance left

• At 0.30 am found in pool of blood – dead

• P/X: epilepsy

Autopsy

• Severe head injury

• Multiple injuries to body

• BAC 309mg/dl

How were the injuries sustained ???

Simple fall in an intoxicated epileptic ????

OR

Can the family sue the MIB1???

In the case of accidents after 31st Dec 1998 the liability of the MIBI

“extends to the payment of compensation for the personal injury or death of any person caused by the negligent driving of a vehicle in a public place where the owner or user of the vehicle remains unidentified or untraced”

Can the family sue the MIB1???

Duty of care to intoxicated individuals - Duty of care to intoxicated individuals - contentious areacontentious area

• In Canada third parties can be held personally liable in respect of the intoxicated

in two ways • a) harm by another to the intoxicated

ORORb)Tortous conduct of the intoxicated

(intoxicated can be victim or perpetrator)

Jordan House Hotel Ltd v Menow and Honsberger 1973. Supreme Court of Canada

~ Menow reputation for bad behaviour and was banned from JHH

~ Allowed back on condition that he be chaperoned~ On nt in question abandoned by escort got v drunk and

ejected~ Later hit by car on highway

~ Menow took action against the hotel for violating their duty of care by serving him alcohol and not ensuring he was safe

leaving hotel

Judge felt the hotel had violated their duty of care to protect patrons from

“danger of personal injury foreseeable as a result of eviction”

The Supreme Court felt that not only did JHH have the duty to protect him when intoxicated but also a duty to prevent him

from intoxication in first place

~ In Australia use VOLENTI defence – (someone who willingly put themselves in a

dangerous situation is unable to sue for resultant injuries) against intoxicated calimant

~ Kelly v GwinnellKelly v Gwinnell Supreme Court of New Jersey 1984

Standard of liability in respect of supplying liquor is the same regardless of whether the host is

commercial or social

In GB alcohol liability – restrained pace“duty of care” well established

Jebson v Ministry of Defence 2000

• C Jebson seriously injured after a night’s drinkingwhen trying to climb onto the canvas roof of a lorry from tailgate

• He was travelling with 20 other soliders at the time

• Court of Appeal concluded that having provided the transport theMinistry of Defence had “duty of care”and they had breached

that duty

Griffiths v Browne 1998

• Claim of negligence made against taxi driver for injuries

sustained by inebriated passenger after alighting from taxi

• Was dropped across the road from destination and whilst crossing the road was hit

by car and seriously injured

CLAIM FAILED

BUT

If the claimant had been in a worse state then a duty of care could have been owed and breached by the driver

Undertaking to provide a service to an inebriated person Could amount to

“assumption of responsibility”

for that person and

HENCE

“Duty of protection”

Not operational in Irish Law

4. Intoxication as a defence to criminal behaviour

• Mens Rea – state of mind required in relation to crime

• Is the person so intoxicated as to be incapable of Mens ReaMens Rea

• So intoxicated as to be in a state of So intoxicated as to be in a state of automatismautomatism

• Innocent intoxication – Innocent intoxication – (no fault of one’s own)(no fault of one’s own)

• Crimes of specific intent Crimes of specific intent – murder– murder

• Crimes of basic intent – Crimes of basic intent – manslaughter and rape manslaughter and rape

Acute effects of alcohol Acute effects of alcohol

BlackoutsBlackouts ~ acute effects of alcohol on memory ~ episodes of amnesia due to a rapid rise in (BAC) ~ Mechanism - block in the transfer of information

from short term memory to long term storage.

~ Potentiating factors include drugs such as benzodiazepines and marijuana.

~ During these episode people are able to function appropriately, carrying out conversations etc

~ Memory impairment is antrograde.

Two typesTwo types

En bloc blackoutsEn bloc blackouts - people can’t remember any of the events that took place while under the influence of alcohol.

These memories don’t return even with memory cues. The onset of the blackout is clear and after the events are

carried out the patient typically falls asleep; with their first full memory being waking up.

Fragmentary blackouts i.e. partial blackoutsFragmentary blackouts i.e. partial blackouts - episodes of impaired

memory for some events or details during a session of drinking. These are more common than the en bloc type.

Memory blackouts were initially characterized in alcoholics,

but occur with social drinking

DPP v Beard 1920

“Evidence of drunkenness which renders the accused incapable of forming specific intent

essential to constitute a crime should be taken into consideration with the other facts provided to determine whether or not he had that intent ”

Drunkeness can have the effect of reducing a crime (specific intent) from murder to

manslaughter

• Intoxication not a defence in crimes of basic intent

• DPP v Majewski 1976DPP v Majewski 1976

• Accused had taken barbiturates, amphetamine and alcohol and then assaulted a publican and 3 policemen

• Appellant’s case was that when the assults committed he was acting under the influence of drugs to such an extent that he was unaware of what

he was doing

• His appeal and subsequent appeals were dismissed

• If crime of basic intent one may be convicted even though by virtue of intoxication one may not possess the necessary MENS REA required and

may be in a state of automatism

• May be convicted by virtue of the proof of committing the crime ACTUS REA

• Intoxication not a defence in crimes of specific intent that can be committed by being RECKLESS

• Recklessness arises when accused is aware of potential adverse consequences of their actions but go

ahead anyway

R v Caldwell 1981

• Accused (disgruntled former hotel employee) got drunk and set fire to hotel intending to damage property but not

the 10 guests asleep inside

• Fire extinguished safely but accused charged with arson and intent to endanger life

• Loophole in Caldwell type recklessness – if defendant considered whether or not risk and decided (wrongly) that

there wasn’t could be acquitted

Law Reform Commission 1995Law Reform Commission 1995

a) Self – induced intoxication should never form a basis for the finding of insanity

b) That no finding of insanity should ever encompass a transient condition resulting

from self-induced intoxication from which the defendant has recovered when he comes to

be tried and sentenced

DPP v John Reilly 2004• June 4th 2000 J Reilly was home on holidays and arranged to stay in the

house of his cousin Hugh Reilly. That evening went out with friends and drank 5 to 6 drinks

• Returned to his cousin’s where his cousin Hugh, wife Siobhan and another cousin Thomas Reilly and his partner Grainne Murphy were playing cards

(latter had an 18 mth old baby)

• At 4.30 am three men retired. John Reilly and baby Oisin slept in sitting room – Oisin asleep on 2 armchairs forming modified cot

• At around 8.30am on June 5th G Murphy went to check on baby.

• J Reilly asleep but baby dead– he had been stabbed 8 or 9 times

• J Reilly charged with murder on May 16th 2002

• Found not guilty of murder but guilty of manslaughter

• He appealed

• Case for the defence was not that intoxication was a defence against manslaughter but that the facts gave rise

to a defence of AUTOMATISM

• Defence claimed that his actions were brought about by a sleep disorder with resultant automatic actions

• Claimed he didn’t intent to kill baby Oisin

• Various expert witnesses called to testify as to alcohol induced automatism

JUDGE “ you have heard a lot of expert witnesses about things

occurring during sleep ….no control over it … say the epileptic or diabetic in a hypo or hyper….if they do something that have

no control over …. No criminal responsibility”

“ But if that situation occurred because of voluntary consumption of alcohol …..look to the law of intoxication.. Then

no defence against manslaughter”

Therefore he made it clear that there can be a defence to automatism but only if it is brought about from free

standing situation

Not a defence if brought about by alcohol

Court refused leave to appeal

• Alcohol strongly associated with crime and criminal behaviour

• Difficult to prove a causal relationship but alcohol frequently and independently associated with violent

and aggressive behaviour

• Sleep walking labs cannot prove a defendant is sleepwalking at the time of the criminal act and alcohol

provocation tests are unethical

• Sleep walking and confusional arousal have only been implicated in 1 to 2 cases of violent behaviour

worldwide in last 100 years

• Alcohol intoxication alone sufficient