We personal injury lawyers see some recurring fact patterns, particularly for the spinal cord and brain injury cases. The fatigued tractor-trailer driver driving beyond the FMCSR hours. The fully loaded passenger van rollover. The scaffolding collapse at a construction site. Commercial vehicles and equipment drive our modern economy, but they do so with more than enough force to maim or to kill if not used carefully.

But nothing beats alcohol, the “social lubricant,” which can turn even the most mundane situation into a crippling or fatal tragedy. Cars, guns, and bodies of water are inherently dangerous anyway — for any given American, their lifetime odds of dying from one of the three are, respectively, 1-in-100, 1-in-325, and 1-in-9,000 — and the addition of alcohol exponentially increases the likelihood of accidents, shootings, and drownings. A mind-numbing (and soul-numbing) number of our cases involve, in one way or another, the use or abuse of alcohol.

Which brings us to the subject of today’s post:

East Hempfield police said Hershey, a salesman at Imports of Lancaster County, East Petersburg, had taken the Jensens on a test drive when he told Tyler Jensen to pull over so he could show him “how it’s done.” Witnesses estimated Hershey was traveling as fast as 90 mph on the two-lane road when a truck pulled into his path and he swerved and hit an embankment, according to the affidavit filed in the case.

The car rolled several times, ejecting Hershey and the elder Jensen, who sustained severe head injuries and died at the scene.

According to the affidavit filed in the case, Hershey admitted to drinking Bacardi rum prior to the crash. His blood-alcohol level at the time of the accident was .06, below the legal limit of .08, said police. He also tested positive for marijuana.

It’s a horrible story, told in excruciating detail by the article. Hershey is rightfully facing criminal charges, and the car dealership is rightfully facing a civil lawsuit for, among other problems, negligently hiring an individual who “was charged with drunken driving twice in 2002, according to court records,” who before then “pleaded guilty to ‘exceeding the maximum speed limit established by 28 mph,'” and who had separately “pleaded guilty to careless driving and following too closely.” That’s not the person you entrust with the test drives.

Let’s put that aside, and put aside the marijuana, too. (Not least since “tested positive” means he used some amount of marijuana at some point in the recent past, not that he was driving under the influence of marijuana at the time.)


Let’s focus on one particular issue: the blood-alcohol level. Notably, Hershey’s blood-alcohol level was below the legal limit.

Does that mean he bears no responsibility for being intoxicated during the the accident?

No. As DUI lawyers have (correctly) harped on for years, Breathalyzers are notoriously unreliable, andblood-alcohol level doesn’t closely correlate to actual impairment. Sure, it’s virtually impossible that someone with a 0.2 BAC will be fit to drive, but once you get below 0.1, things get murkier. Although DUI lawyers normally argue these points to show why a blood-alcohol level above the legal limit doesn’t necessarily mean the driver was impaired, the Hershey case is apparently an example where, even though the driver’s blood-alcohol level was below the legal limit, the driver was still impaired in their decision-making.

The determination of whether or not someone was negligent by being intoxicated involves a much more thorough factual analysis than a mere blood-alcohol level analysis. Consider Braun v. Target Corp., 983 A. 2d 752 (Pa. Superior Court 2009), a fall accident case:

Although there is scant case law regarding the admissibility of evidence relating to alcohol consumption in the civil negligence scenario, the graveman of the admissibility question is whether evidence of Mr. Braun’s intoxication and BAC result was relevant to prove his unfitness to perform work eighteen feet above ground. SeeFisher, supra;Locke, supra;Ackerman, supra.

As such, in Braun, the real issues were:

Target presented the following evidence concerning Mr. Braun’s intoxication: (1) Appellant admitted Mr. Braun consumed alcohol throughout the day before the accident; (2) witnesses observed Mr. Braun drink beer at lunch shortly before the accident; (3) Mr. Braun ascended eighteen feet above ground on a scissor lift and failed to tie off, even though safety equipment on the railed platform was readily accessible to him; (4) Mr. Braun inexplicably and unnecessarily stepped off of the railed platform onto an eight inch wide steel beam; (5) Mr. Braun’s BAC was 0.27 percent; and (6) Dr. Pape opined Mr. Braun’s high BAC level would render him physically and behaviorally impaired and drastically increase his risk of falling. Under these facts, this evidence suggests more than a mere hint of intoxication. See Crosby, supra. Thus, we see no error in the admission at trial of evidence of Mr. Braun’s alcohol consumption.

So it will be with Hershey. The blood-alcohol level is only a minor part of the equation; the bigger issue will be his erratic and reckless behavior. Let’s face it: Hershey plainly was impaired to even attempt 90 mph drifts on two-lane public roads, and he’ll likely be held accountable for being intoxicated — even if below the legal limit — at the time of the accident.

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