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Server law won’t get special emphasis in Walworth County
State law difficult to enforce, traffic safety panel finds

by Chris Schultz

April 14, 2011

Elkhorn — State law is clear.

Chapter 125.07(2) of Wisconsin state statutes makes it illegal to serve an intoxicated person. Anyone who violates that law may be fined not less than $100 and not more than $500 and spend up to 60 days in jail.

After that, things get murky.

Murky enough that the Walworth County Highway Safety Commission decided not send out letters to the county's 17 law enforcement agencies drawing attention to the law and encouraging more active enforcement.

The agencies know the law, and most pursue all avenues when investigating a serious accident involving alcohol, said Sheriff's Capt. Scott McClory, who chairs the safety commission.

Tom Anthony, a safety commission member, was looking for a way to reduce the incidences of drunken driving on county highways.

At the commission's July 2010 meeting, Anthony first proposed Walworth County law enforcement take the lead in going after servers who over-served their customers and sent them out to their cars impaired.

"You don't have to be a rocket scientist to know when someone's had too much," Anthony said at the April 7 safety commission meeting.

He knows something about spotting drunks.

Anthony, who recently retired from Gateway College, taught a course on responsible alcohol service to persons who applied for operators licenses. Even though retired, Anthony said he's still involved with those courses on a part-time basis.

There were physical characteristics common to those who are drunk, including red eyes, slurred speech and unsteady walk that all servers should be aware of, Anthony said.

Enforcing the server law may not be rocket science, but the way Wisconsin's law is written, it's not all that easy, either, said Zeke Wiedenfeld, assistant Walworth County district attorney.

As far as state law is concerned, serving an underaged person is easier to prove, because the legal blood-alcohol limit for anyone under 21 is 0, Wiedenfeld said.

The law provides that if the drunken driver is underage, and the accident the drunken driver causes results in death or serious injury, the victim, the victim's relatives or the victim's estate may pursue damages against the server.

When the offender is of legal age, enforcement becomes more difficult.

Wiedenfeld said the server investigation would have to be done in connection with a drunken driving or other alcohol-related crime.

The intoxicated person would have to provide a statement to authorities.

"I need an admission. I was at the bar, I was drunk at the bar and they were still serving me alcohol, Wiedenfeld said.

That's something most persons arrested for alcohol-related crimes don't do, he said.

Then, authorities would have to go that establishment, get the name of the server and also obtain statements from witnesses who saw the server serving drinks to the obviously inebriated subject, Wiedenfeld said.

And the witnesses have to be sober.

"You can't rely on the drunk guy's drunken friend saying he was plowed," Wiedenfeld said.

Wiedenfeld presented a letter outlining the problems to the commission.

Walworth County Judge John Race, also a commission member, said there is a key element that is missing from the state statute.

"I still don't know what intoxicated means, not driving, but sitting at a bar," Race said.

Wisconsin's legal limit of 0.08 percent blood-alcohol for intoxication refers only to traffic offenses and other violations.

It doesn't apply to someone sitting peacefully at a local bar, Race said.

The appearance of intoxication doesn't always apply, either.

"The problem in Wisconsin is, you're dealing with professionals.

"And I'm not talking about the bartenders," Race added.

He said some alcoholics may appear to be perfectly sober even after passing the legal and medical limits for intoxication.

"It's easy enough to charge something, but it's very hard to prove." Race said.

McClory said that even an apparently open-and-shut case isn't always cut and dried.

"You leave Scott McClory's bar and you have an accident," McClory said.

That seems clear enough, he said.

"But you left at 10 p.m. and had the accident at 10:45 p.m. and the bar is four minutes away from the accident scene.

"Where was he for those 40 minutes," McClory asked.

The subject may have been drinking at the bar.

But in those missing 40 minutes, he may have also stopped at a friend's house where he had the drinks that finally pushed him over the limit of legally drunk before the accident, McClory said.

In many cases, drunken drivers are found to have been drinking at private residences or at multiple bars before an accident, McClory said.