WPI 370.01.01 Furnishing Alcohol—Person Apparently Under the Influence of Alcohol—Definition

Use this instruction when there is a claim that alcohol was provided to a person apparently under the influence of alcohol. Use bracketed language as applicable.

The instruction's first paragraph is based on Barrett v. Lucky Seven Saloon, 152 Wn.2d 259, 268, 96 P.3d 386 (2004); see also Ensley v. Mollman, 155 Wn.App. 744, 230 P.3d 599 (2010).

In Faust v. Albertson, 143 Wn.App. 272, 178 P.3d 358 (2008), reversed on other grounds, 167 Wn.2d 531, 222 P.3d 1208 (2009), the Court of Appeals held that “apparently intoxicated” equates to “seemingly drunk,” and did not use the “readily perceptible” language from Barrett. On appeal, the Washington Supreme Court held circumstantial evidence that a tortfeasor was apparently under the influence post-service may be submitted to the trier of fact when such firsthand observations occur within a short period of time after the alleged overservice. Faust, 167 Wn.2d at 540–41. Further, blood alcohol content of the tortfeasor is relevant to support and corroborate the credibility of firsthand observations of the tortfeasor's appearance, but is not alone sufficient to prove apparent intoxication at the time of service. Faust, 167 Wn.2d at 542.

Additionally, the Washington Supreme Court affirmed the public policy that the standard of proving obvious or apparent intoxication must be based on firsthand observations, not assumptions. Faust, 167 Wn.2d at 539–41. Jurors should not be allowed to infer intoxication based on the tortfeasor's blood alcohol content alone. A person's level of intoxication must be judged at the time of service, because “underlying physiological science reflect[s] that not all drinkers will appear drunk at certain levels of alcohol consumption ….” Faust, 167 Wn.2d at 541. See also the Comment to WPI 370.02 (Furnishing Alcohol—Obviously Intoxicated Person—Definition) (discussing requirement that firsthand observations take place within a short period of time after service).