By: Roger D. Horgan

It is perfectly legal for a driver over the age of 21 years to drink and drive in the Commonwealth of Pennsylvania! That may come as a surprise to people, given the popular admonishment, “Don’t Drink and Drive!” In reality, there is a prohibition only against driving while under the influence of alcohol to such a degree that it renders the driver incapable of safe driving. Impaired driving may be proven by behavior such as swaying, slurred speech, etc., coupled with a police officer’s opinion of intoxication. It can also be proven by testing the driver’s blood alcohol level. In Pennsylvania, the blood alcohol limit is .08%. That is the criminal side.

What happens in a civil lawsuit when the injured party, the Plaintiff, has consumed alcohol? One might think that proof of the consumption of any alcohol whatsoever should be admissible into evidence. It should be left up to the jury as to what weight should be placed upon the consumption of minor amounts of alcohol, right? Historically, that has not been the case. Pennsylvania courts have ruled that in the absence of proof of alcohol induced impairment, the mention of alcohol consumption is too prejudicial to allow a jury to hear. In 1956, the Pennsylvania Supreme Court said, “While proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.”

The interplay of the factors surrounding alcohol as evidence in an auto accident case is demonstrated in a recent Pennsylvania Superior Court case of Rohe v. Vinson in 2016. Mr. Rohe was a motorcyclist who was injured in an accident involving a truck which turned into his lane of travel. Mr. Rohe admitted to having drunk several beers over the course of an afternoon of riding and dining, but denied that he was intoxicated. He asked the trial court to prevent any evidence of his consumption of alcohol from being presented to the jury. The trial court denied that request, and Rohe lost his claim for damages.

He appealed to the Superior Court, which reversed the decision of the trial court, and ordered a new trial at which evidence of Rohe’s alcohol consumption will not be presented to the jury. The Superior Court concluded that the defendant had no viable proof that Mr. Rohe was unfit to drive as the result of alcohol consumption. The record established that none of the individuals with whom Rohe interacted after the accident, including a State Trooper, observed anything in Rohe’s demeanor to indicate that he was under the influence of alcohol. Further, his blood alcohol level as tested two hours after the accident was found to be below the state limit of .08%, at .0706%. The Court also ruled that the defendant’s efforts to calculate the blood level at the time of driving by way of the expert opinion of a toxicologist amounted to no more than speculation, and that the opinion should not have been admitted. The Court was critical of the expert’s methodology, and found the opinion to be too unreliable to have been submitted to the jury.

While one is best served refraining from driving after consuming any alcohol, the law remains that evidence of alcohol is only permitted where it can be shown that the alcohol the driver consumed rendered him unable to drive safely.