WPI 370.02 Furnishing Alcohol—Obviously Intoxicated Person—Definition

Use this instruction when a person's obvious intoxication is in issue. Use bracketed material as applicable.

The first sentence of the paragraph is based on Barrett v. Lucky Seven Saloon, 152 Wn.2d 259, 268, 96 P.3d 386 (2004), in which the Supreme Court held that the term “obviously” intoxicated means “unmistakably” or “certainly” intoxicated. The second sentence is based on State v. Zamora, 6 Wn.App. 130, 132, 491 P.2d 1342 (1971) (“Intoxication ‘refers to an impaired mental and bodily condition which may be produced either by alcohol, which is a drug, or by any other drug.’” (citing additional cases)). The WPI Committee believes that this paragraph more clearly describes the current legal standard than did the previous version, which read: “A person is obviously intoxicated if the person is so intoxicated that he or she is effectively deprived of will power or responsibility for his or her own actions.”

Christen v. Lee, 113 Wn.2d 479, 487, 780 P.2d 1307 (1989). But see Dickinson v. Edwards, 105 Wn.2d 457, 465, 716 P.2d 814 (1986) (admitted fact that the person was served between 15 and 20 drinks in a three and one-half hour period raised a material factual issue as to whether the person would have displayed some outward manifestation of intoxication before ordering and whether defendants knew or should have known that the person was intoxicated) (distinguished as “factually unique” in Purchase v. Meyer, 108 Wn.2d 220, 227, 737 P.2d 661 (1987)).

“[N]either the results of a blood alcohol test nor the appearance of a person a substantial time after the intoxicating liquor was served constitutes sufficient evidence of obvious intoxication.” Christen, 113 Wn.2d at 488–89; accord, Purchase, 108 Wn.2d at 226; Wilson v. Steinbach, 98 Wn.2d 434, 439, 656 P.2d 1030 (1982); Barrie v. Hosts of America, Inc., 94 Wn.2d 640, 643 n.1, 618 P.2d 96 (1980); Shelby v. Keck, 85 Wn.2d 911, 915, 541 P.2d 365 (1975); Williams v. Kingston Inn, 58 Wn.App. 348, 792 P.2d 1282 (1990).

Although blood alcohol evidence is not sufficient by itself to prove obvious intoxication, the Court of Appeals has held that blood alcohol test results may be admitted under an abuse of discretion standard when the test results enhance the credibility of eyewitnesses who testified as to the person's obvious intoxication. Cox v. Keg Rests., 86 Wn.App. 239, 248–50, 935 P.2d 1377 (1997).

The Supreme Court has not yet directly addressed the admissibility of blood alcohol evidence to prove obvious intoxication, see Estate of Kelly v. Falin, 127 Wn.2d 31, 42 n.4, 896 P.2d 1245 (1995), but the rationale of the Supreme Court in several cases suggests that the Supreme Court would reach the same conclusion as the Court of Appeals. See, e.g., Faust v. Albertson, 167 Wn.2d 531, 539–42, 222 P.3d 1208 (2009) (reaching this conclusion in the closely related context of the “apparently under the influence” standard); Christen, 113 Wn.2d 479 (a blood alcohol test is not by itself sufficient evidence of obvious intoxication).

A police officer's subjective observation that a person was obviously intoxicated shortly after the person left the place where the person was served alcohol may raise an inference that the person was obviously intoxicated at the time of service, provided that the person did not consume any alcohol after leaving and provided there is no unaccounted-for time between the person's departure and the police officer's subsequent observation. Fairbanks v. J.B. McLoughlin Co. Inc., 131 Wn.2d 96, 103, 929 P.2d 433 (1997); Dickinson, 105 Wn.2d at 464.