What is LawBrain?
It's a living legal community making laws accessible and interactive. Click Here to get Started »

Alcohol

From lawbrain.com

The active principle of intoxicating drinks, produced by the fermentation of sugars.

A Congressman was once asked by a constituent to explain his attitude toward whiskey. "If you mean the demon drink that poisons the mind, pollutes the body, desecrates family life, and inflames sinners, then I'm against it," the Congressman said. "But if you mean the elixir of Christmas cheer, the shield against winter chill, the taxable potion that puts needed funds into public coffers to comfort little crippled children, then I'm for it. This is my position, and I will not compromise."

The Legal History of alcohol in the United States closely parallels the economic and social trends that shaped the country. The libertarian philosophy that ignited the Whiskey Rebellion was born in the American Revolution. Shifting concerns about morality and family harmony that were characteristic of the Industrial Revolution inspired the temperance movement and brought about prohibition, which began with the passage of the Eighteenth Amendment to the Constitution in 1919 and ended with its repeal in 1933. The return of legalized drinking in the United States led to renewed discussion of the many health and safety issues associated with alcohol consumption. Over the years, the states have addressed these issues through a variety of laws, such as those dealing with a minimum age for the purchase or consumption of alcohol, the labeling of alcoholic beverages, and drunk driving. Private litigants have expanded protections against harm from alcohol through tort actions, and various groups, both national and local, continue to lobby for increased legislation and higher penalties for alcohol-related acts that lead to injury.

Contents

Historical Background of Alcohol in the United States

Drink is in itself a good creature of God,<br/>and to be received with thankfulness,<br/>but the abuse of drink is from Satan,<br/>the wine is from God, but the Drunkard is from<br/>the Devil.<br/>(Increase Mather, Puritan clergyman, <i>Wo to Drunkards</i> [1673])

Alcoholic beverages have been consumed in the United States since the days of Plymouth Rock. In fact, beer and wine were staples on the ships carrying settlers to the New World. In colonial times, water and milk were scarce and susceptible to contamination or spoilage, and tea and coffee were expensive. The Pilgrims turned to such alternatives as cider and beer, and, less frequently, whiskey, rum, and gin. In 1790, per capita consumption of pure alcohol, or absolute alcohol, was just under six gallons a year. (Pure alcohol constitutes only a small percentage of an alcoholic drink. For example, if a beverage contains 10 percent alcohol by volume, one would have to drink ten gallons of it to consume one gallon of pure alcohol.)

Although the majority of the colonists drank alcohol regularly, strong community social strictures curbed any tendency toward immoderation. Drunken behavior was dealt with by emphasizing the need to restore community harmony and stability, rather than by imposing punishment.

Alcohol consumption continued without much controversy until after the Revolutionary War when whiskey and other distilled spirits became valuable commercial commodities. When Congress imposed an excise tax on the farmers who produced liquor in the 1790s, they resisted paying the tax. Their resistance became known as the Whiskey Rebellion, a protest movement of farmers who felt the tax placed an undue burden on their commercial activities.

Before the nineteenth century, farming was the predominant occupation, and, although it involved grueling work, it did not demand precision or speed. The Industrial Revolution brought millions of workers into factories where efficiency, dexterity, and rigid scheduling were necessary. With these economic changes came a shift in societal attitudes toward alcohol. Gone was the time when people considered the midday liquor break a benign diversion.

The Temperance Movement

'Mid pleasures and palaces, though we may roam,<br/>Be it ever so humble, there's no place like home.<br/>But there is the father lies drunk on the floor,<br/>The table is empty, the wolf's at the door,<br/>And mother sobs loud in her broken-back'd chair,<br/>Her garments in tatters, her soul in despair.<br/>(Nobil Adkisson, <i>Ruined by Drink</i> [c. 1860])

As the United States entered the Industrial Age, attitudes about alcohol consumption gradually changed. A moralistic and punitive view of alcohol replaced the laissez-faire attitudes of earlier times. What had been the "good creature of God" in the eighteenth century became the "demon rum" of the nineteenth.

The U.S. temperance movement emerged around 1826 with the formation of the American Society for the Promotion of Temperance, later called the American Temperance Society. In the 1840s, the society began crusading for com plete abstinence from alcohol. Dissemination of the temperance message caused a fall in per capita consumption of pure alcohol from a high of over seven gallons a year in 1830 to just over three in 1840, the largest ten-year drop in U.S. history. By the outbreak of the Civil War, 13 states, beginning with Maine in 1851, had adopted some form of prohibition as law.

Other temperance organizations became prominent during the middle to late 1800s. In 1874, the Woman's Christian Temperance Union (WCTU) was founded. The only temperance organization still in operation, the WCTU has worked continuously since its inception to educate the public and to influence policies that discourage the use of alcohol and other drugs. In 1990, the group was nominated for a Nobel Peace Prize.

In 1869, the anti-alcohol movement created its own political party—the National Prohibition party—devoted to a single goal: to inspire legislation prohibiting the manufacture, transportation, and sale of alcoholic beverages. The party made modest showings in state elections through the 1860s and 1870s, and reached its peak of popular support in 1892 when John Bidwell won almost 265,000 votes in his bid for the presidency. The Prohibition party's main effect was its influence on public policy. It succeeded in placing Prohibition planks into many state party platforms and was a potent impetus behind passage of the Eighteenth Amendment.

One of the most powerful forces in the Prohibition movement was the Anti-Saloon League, a nonpartisan group founded in 1893 by representatives of temperance societies and evangelical Protestant churches. The Anti-Saloon League, unlike the Prohibition Party, worked within established political parties to support candidates who were sympathetic to the league's goals. By 1916, the league, with the help of the Prohibition party and the WCTU, had sent enough sympathetic candidates to Congress to ensure action on a Prohibition amendment to the Constitution.

Prohibition

Prohibition is an awful flop.<br/>We like it.<br/>It can't stop what it's meant to stop.<br/>We like it.<br/>It's left a trail of graft and slime<br/>It don't prohibit worth a dime<br/>It's filled our land with vice and crime,<br/>Nevertheless, we're for it.<br/>(Franklin P. Adams, quoted in <i>Era of Excess</i>)

In December 1917, the temperance movement achieved its goal when Congress approved the Eighteenth Amendment, which prohibited the manufacture, sale, transportation, importation, or exportation of intoxicating liquors from or to the United States or its territories. The amendment was sent to the states, and, by January 1919, it was ratified. In January 1920, the United States officially became dry.


The demand for liquor did not end with Prohibition, however. Those willing to violate the law saw an opportunity to fill that demand and become wealthy in the process. Illegal stills produced the alcohol needed to make "bathtub gin." Rum and other spirits from abroad were commonly smuggled into the country from the east and northwest coasts, and illegal drinking establishments, known as speakeasies or blind pigs, proliferated. The illicit production and distribution of alcohol, called bootlegging, spawned a multibillion-dollar underworld business run by a syndicate of criminals.

Perhaps the most famous of the bootleggers was Al Capone, who ran liquor, prostitution, and racketeering operations in Chicago—one of the wettest of the wet towns. At the height of his power in the mid-1920s, Capone made hundreds of millions of dollars a year. He employed nearly a thousand people and enjoyed the cooperation of numerous police officers and other corrupt public officials who were willing to turn a blind eye in return for a share of his profits. For years, Capone and others like him evaded attempts to shut down their operations. Capone's reign finally ended in 1931 when he was convicted of income tax evasion.

Historians differ about the success of Prohibition. Some feel that the effort was a ludicrous failure that resulted in more severe social problems


than had ever been associated with alcohol consumption. Others point to ample evidence that Prohibition, although never succeeding in making the country completely dry, dramatically changed U.S. drinking habits. Per capita consumption at the end of Prohibition had fallen to just under a gallon of pure alcohol a year, and accidents and deaths attributable to alcohol had declined steeply.

Although Prohibition enjoyed widespread popular support, a substantial minority of U.S. citizens simply ignored the law. Also, although Prohibition unquestionably fostered unprecedented criminal activity, many people were concerned that the government's enforcement efforts unduly intruded into personal privacy. In cases such as Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), the Supreme Court indicated its willingness to stretch the limits of police power in order to enforce Prohibition. In Carroll, the Court held that federal agents were justified in conducting a warrantless search of an automobile, because they had probable cause to believe it contained illegal liquor.

Concerns over diminished liberties led to feelings that Prohibition was too oppressive a measure to impose upon an entire nation. This sentiment was bolstered by arguments that the production and sale of alcohol were profitable enterprises that could help boost the nation's depressed economy. By the beginning of the 1930s, after little more than a decade as law, Prohibition lost its hold on the U.S. conscience. The promise of jobs and increased tax revenues helped the anti-Prohibition message recapture political favor. The Twenty-first amendment, repealing Prohibition, swept through the necessary 36-state ratification process, and the "noble experiment" ended on December 5, 1933.

Post-Prohibition Regulation and Control

The repeal of Prohibition forced states to address once more the dangers posed by excessive alcohol consumption. The risks are well documented. The National Highway Traffic Safety Administration (NHTSA) estimated that, in 2001, alcohol was involved in 41 percent of all fatal crashes (over 17,000 fatalities). NHTSA also estimates that three out of ten Americans will be involved in an alcohol-related crash sometime during their lives. Alcohol is the most widely used drug among teenagers and is linked to juvenile crime, health problems, suicide, date rape, and unwanted pregnancy. Alcohol-related traffic accidents are the leading cause of death among 15- to 24-year-olds.

In the face of rising concerns about liquor consumption and personal injury, many states chose to regulate alcohol through dramshop laws. A dramshop is any type of drinking establishment where liquor is sold for consumption on the premises. Dramshop statutes impose liability on sellers of alcoholic beverages for injuries caused by an intoxicated patron. Under such statutes, a person injured by a drunk patron sues the establishment where the patron was served. The purpose of dramshop laws is to hold responsible those who enjoy economic benefit from the sale of liquor, thereby ensuring that a loss is not borne solely by an innocent victim (as when the intoxicated person who caused the injuries has no assets and no insurance).

The first dramshop law, enacted in Wisconsin in 1849, required saloons or taverns to post a bond for expenses that might result from civil lawsuits against their patrons. Many states followed Wisconsin's lead, and dramshop laws were prominent until the 1940s, 1950s, and 1960s, when most were repealed. However, the 1980s brought renewed concern over the consequences of overindulgence in alcohol, and public pressure led to the passage of new dramshop statutes. By 1993, 36 states had imposed some form of liability on purveyors of alcoholic beverages for injuries caused by their customers.

All states and the District of Columbia also regulate the sale of liquor to minors or to individuals who are intoxicated. Challenges to the age restriction on equal protection grounds have been unsuccessful.

Along with statutory measures, most courts have also recognized a common-law cause of action against alcohol vendors for the negligent sale of alcohol. In Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1 (1959), the court held that a tavern could be held liable for the plaintiff's husband's death after the tavern served an intoxicated minor who caused the accident that killed the man. The court relied on the public policy concerns underlying liquor control laws. Such laws are intended to protect the general public as well as minors or intoxicated persons, the court reasoned, and therefore the tavern should be held liable if its negligence was a substantial factor in creating the circumstances that led to the husband's death. Under Rappaport, serving as well as consuming alcohol can be construed to be the proximate cause of an injury. A majority of jurisdictions now follow the Rappaport court's reasoning.

In determining the extent of an alcohol vendor's liability, a growing number of courts apply comparative negligence principles. Comparative negligence assesses partial liability to a plaintiff whose failure to exercise reasonable care contributes to his or her own injury. In Lee v. Kiku Restaurant, 127 N.J. 170, 603 A.2d 503 (1992), and Baxter v. Noce, 107 N.M. 48, 752 P.2d 240 (1988), the plaintiffs sued under dramshop statutes for injuries suffered when they rode with drunk drivers. The courts in both cases recognized the importance of dramshop statutes in protecting innocent victims of drunk behavior. However, they also recognized the need to hold individuals responsible to some degree for their own safety. Under comparative negligence, which divides liability among the parties in accordance with each party's degree of fault, both goals are achieved.

A few courts have extended liability for injuries to social hosts who serve a minor or an intoxicated guest. In Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984), the New Jersey Supreme Court found both the host and the guest jointly liable when the guest had an accident after drinking at the host's house. The court based the host's liability on his continuing to serve alcoholic beverages to the guest when he knew the guest was intoxicated and likely to drive a car. Similarly, in Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985), the Wisconsin Supreme Court held that a social host was negligent for serving liquor to a minor guest at a graduation party. The guest was later involved in a motorcycle accident in which the plaintiff was injured. However, the Ohio Supreme Court refused to extend liability to the social host in Settlemyer v. Wilmington Veterans Post No. 49, 11 Ohio St. 3d 123, 464 N.E.2d 521 (1984). The court in Settlemyer held that assigning liability to a social host is a matter better left to the legislature.

All states and many local governments regulate the sale of alcohol through the issuance of licenses. These licenses limit the times and locations where liquor sales can take place. The government also regulates alcohol through taxation. Current taxes on liquor serve the same dual purpose as did the first excise tax on liquor when it was proposed by Alexander Hamilton in 1791: they provide a source of revenue for the government and, theoretically, discourage overindulgence. Enforcement of the laws regulating alcohol and taxing it is carried out by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), an agency of the U.S. Justice Department, and the Tax and Trade Bureau (TTB), an agency of the Treasury Department, respectively. The collection of alcohol revenues is important to the federal government: in 2001, liquor taxes exceeded $7.6 billion.

During the 1980s and 1990s, public awareness of the dangers of alcohol led to a number of changes in the law. Specifically, special interest groups such as Mothers Against Drunk Driving (MADD) and Students Against Drunk Driving (SADD) pressured state legislatures to greatly increase enforcement and penalties for driving while intoxicated (DWI). Criminal statutes make DWI a misdemeanor offense. Historically, few persons served jail time unless they were repeat offenders. Moreover, prosecutors often reduced DWI charges to lesser charges, such as reckless driving, so defendants could avoid the stain of a DWI conviction on their driving records.

MADD was formed by mothers of children who had been killed by drunk drivers. They were outraged at the way the criminal justice system treated DWI crimes. A major focus in the 1990s for MADD was convincing state legislatures to reduce the blood alcohol count needed to constitute a DWI offense. Specific blood-alcohol concentration (BAC) limits varied from state to state, but .10 percent BAC usually qualified as driving while intoxicated. MADD sought to reduce the BAC to .08 percent and successfully lobbied many state legislatures. However, alcohol wholesalers, retailers, and the hospitality industry fought a lowered BAC, arguing that it would hurt business and unfairly penalize drivers.

The debate moved to the national level in 1998 when Congress first rejected and then enacted legislation that requires all states to lower the drunken driving arrest threshold to .08 percent. States that failed to change their laws would forfeit millions of dollars in federal highway construction funds. By the end of 2002, one-third of the states had not complied with the law, arguing that studies did not show that a reduction from .10 to .08 BAC saved many lives. Opponents of the law contended that a .08 BOC merely led to thousands of additional arrests of casual drinkers who did not pose a serious safety risk. The additional arrests absorbed more police and prosecutorial resources, which would not be offset by the federal highway funds.

An increased knowledge about the consequences of alcohol consumption also had an effect on the makers of alcohol. Concerned individuals felt that liquor manufacturers had the duty to warn consumers that their product may be hazardous. Before 1987, manufacturers of alcoholic beverages were immune from civil liability for injuries resulting from the use of liquor. Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982), held that the defendant did not have a duty to warn the plaintiff of the dangers of its product. The court stated that the dangers inherent in the use of alcohol are "common knowledge to such an extent that the product cannot objectively be considered to be unreasonably dangerous."

Garrison was followed by other jurisdictions until 1987 when Hon v. Stroh Brewery, 835 F.2d 510 (3d Cir. 1987), signaled a shift in judicial sentiment. In Hon, the plaintiff's 26-year-old husband died of pancreatitis attributable to his moderate consumption of alcohol over a six-year period. The plaintiff alleged that the defendant's products were "unreasonably dangerous" because consumers were not warned of the lesser-known dangers of consumption. The court, relying on the Restatement (Second) of Torts § 402A, held that a product is defective if it lacks a warning sufficient to make it safe for its intended purpose. Since the general public is unaware of all the health risks associated with liquor consumption, the court found the defendant liable for failing to warn the plaintiff.

The reasoning in Hon has been followed in other cases, including Brune v. Brown-Forman Corp., 758 S.W.2d 827 (Tex. Ct. App. 1988), where the court found that the defendant's product was unreasonably dangerous because it bore no warning about the dangers of excessive consumption. The plaintiff's daughter, a college student, died after consuming 15 shots of tequila over a short period of time.

The duty of liquor manufacturers to warn consumers of the hazards of drinking was codified when Congress passed the Alcoholic Beverage Labeling Act of 1988 (27 U.S.C.A. § 215). The act requires all alcoholic beverage containers to bear a clear and conspicuous label warning of the dangers of alcohol consumption.

The United States's long history of ambivalence toward the consumption of alcoholic beverages shows no sign of abating. At the same time that manufacturers are required to warn consumers about the health risks inherent in liquor, some medical studies indicate that certain health benefits may be associated with moderate imbibing.

Further Readings

Alcoholics Anonymous World Services (AAWS). Twelve Steps and Twelve Traditions. New York: AAWS.

Blocker, Jack S., ed. 1979. Alcohol, Reform and Society. Westport, Conn.: Greenwood Press.

Boyd, Steven R., ed. 1985. The Whiskey Rebellion. Westport, Conn.: Greenwood Press.

Cochran, Robert F., Jr. 1994. "'Good Whiskey,' Drunk Driving, and Innocent Bystanders: The Responsibility of Manufacturers of Alcohol and Other Dangerous Hedonic Products for Bystander Injury." South Carolina Law Review 45 (winter).

Cordes, Renee. 1992. "Alcohol Manufacturer Held Partially Liable for Student's Death." Trial 28 (December).

Goldberg, James M. 1992. "Social Host Liability for Serving Alcohol." Trial 28 (March).

Gorski, Terence T. 1989. Understanding the Twelve Steps. New York: Prentice-Hall/Parkside.

Jacobs, James B. 1989. Drunk Driving: An American Dilemma. Chicago: Univ. of Chicago Press.

Khoury, Clarke E. 1989."Warning Labels May Be Hazardous to Your Health: Common-Law and Statutory Responses to Alcoholic Beverage Manufacturers' Duty to Warn." Cornell Law Review 75.

Kyvig, David E., ed. 1985. Law, Alcohol, and Order. Westport, Conn.: Greenwood Press.

Lender, Mark. 1987. Drinking In America: A History. New York: Free Press.

Moore, Pamela A. 1993. "Lee v. Kiku Restaurant: Allocation of Fault between an Alcohol Vendor and a Patron—What Could Happen after Providing 'One More for the Road'?" American Journal of Trial Advocacy 17: 1.

Smith, Christopher K. 1992. "State Compelled Spiritual Revelation: The First Amendment and Alcoholics Anonymous as a Condition of Drunk Driving Probation." William and Mary Bill of Rights Journal 1 (fall).

Vartabedian, Ralph. 2002. "Some States Resist Lower Alcohol Limits." Los Angeles Times (December 30).

Wagenaar, Alexander C., and Traci L. Toomey. 2000. "Alcohol Policy: Gaps Between Legislative Action and Current Research." Contemporary Drug Problems 27 (winter).

See Also

Contributors

Admin, FindLaw Pierre, FindLaw VM, FindLaw dave, Sfitzpatrick