Can Drinking Alcohol Be Used Against You In a Personal Injury Lawsuit Even If You Were Not Intoxicated?

by Paul H. Cannon on Feb. 11, 2017

Accident & Injury Accident & Injury  Car Accident Accident & Injury  Personal Injury 

Summary: Contrary to what some people may believe, you do not have to be legally intoxicated for evidence of alcohol use to be used against you to show negligence in a civil personal injury case.

Can Drinking Alcohol Be Used Against You In a Personal Injury Lawsuit Even If You Were Not Intoxicated?

Many people think that as long as they are not legally intoxicated, evidence of drinking alcohol before driving cannot be used against you in any manner. After all unless you blow a .08 or higher, you cannot be charged with driving under the influence. However, the reality is that in a civil personal injury claim arising from a car accident, evidence of any alcohol use may be used to show that your driving ability was impaired  and that you were negligent in the operation of a motor vehicle. 

The Standard of Care

 In a personal injury case, the standard of care to which people are held is "negligence." "Negligence" is defined by Texas law as "the failure to do that which a person of ordinary prudence would have done under the same or similar circumstances." Thus, if a driver fails to do that which a person of ordinary prudence would have done while operating a vehicle under the same or similar circumstances, he is negligent and can be held responsible for the foreseeable damages caused thereby that proximately resulted from the negligence.

 Intoxication and Negligence

 Texas Court's have held that "intoxication or non-intoxication is an important circumstance bearing on the issue of negligence."  Soriano v. Medina, 648 S.W.2D 426 (Tex.Civ.App.--San Antonio 1983, no writ);  Tripp v. Watson, 235 S.W.2d. 677 (Tex.Civ.App.--Ft. Worth, 1950, writ ref'd n.r.e.); Hicks v. Frost 195 S.W.2d 606 (Tex.Civ.App.--El Paso 1946, writ ref'd n.r.e.). As a result, evidence of intoxication has been allowed to show negligence on the part of a driver.  In Gunter v.Morgan, 473 S.W.2d 952, 954 (Tex.Civ.App.--Texarkana 1971, no writ), the Court affirmed the trial court's decision to allow into evidence testimony by the Defendant that he "had a drink of whiskey earlier in the morning on the day of the collision, and that a half-pint bottle containing whiskey was in appellant's vehicle when the collision occurred."  In doing so the Court stated:

Intoxication might, under a particular fact situation constitute negligence and the proximate cause of an injury, and of course, relevant evidence would be admissible to establish such fact.  But, wholly aside from pleading and proof of an action or defense of that nature, common experience has led to recognition that an automobile operator's mental and physical faculties and ability to properly drive may be impaired when such a driver is under the influence of beverage alcohol, and evidence tending to prove such condition is admissible and may be considered by the jury when driving ability, vigilance, judgment or reactions and similar matters are at issue.  Id. at 954.

Similarly, in Soriano v. Medina, 648 S.W.2D 426 (Tex.Civ.App.--San Antonio 1983, no writ), again it was held that the mere presence of alcoholic beverage containers and the smell of alcohol on the Defendant's breath was sufficient to raise the issue of intoxication and make said evidence admissible.  In doing so, the Court iterated as follows:  "In determining the question of negligence, evidence of intoxication at or near the time of the accident is admissible as a circumstance to be considered with other facts in evidence." Id. at 428, (Quoting Tripp v. Watson, 235 S.W.2d. 677 (Tex.Civ.App.--Ft. Worth 1950, writ ref'd n.r.e.)) See also: Dorman v. Langlinais, 592 S.W.2d 650 (Tex. App--Beaumont 1979, no writ) (holding that if there is further evidence of negligent and improper conduct on the part of the user, evidence of the use of intoxicants is admissible.)

 Even the Smell of Alcohol Can Have A Bearing On Negligence

 Additionally, virtually every case addressing the issue has agreed that the mere smell of alcohol on one's breath is admissible so long as there is some other evidence of intoxication.  See Ford Motor Co. v. Whitt, 81 S.W.2d 1032, 1036 (Tex.Civ.App.--Amarillo 1935, writ ref'd) (holding that evidence that the car "traveled from first one side of the road to the other" was sufficient 'other' evidence of intoxication to allow testimony as to the smell of alcohol on Defendant's breath and that it was reversible error to exclude that evidence.); Southwestern Bell Telephone Co. v. Ferris, 89 S.W.2d 229 (Tex.Civ.App.--Dallas 1935, writ dism'd) (holding evidence the car zig-zagged was sufficient other evidence). 

Contrary to what people may think, alcohol use, regardless of intoxication level, may be used against a driver in a civil lawsuit for personal injury damages. There is no minimum intoxication level for evidence of alcohol consumption to be admitted against a person in a civil case.

Paul Cannon is an attorney at
Simmons and Fletcher, P.C. in Houston, Texas.

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