Gas station attendants on the hook for impaired drivers? Not a chance

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“No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.” – R.S.O. 1990, c. L.19, s.29

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We’re all familiar with this Ontario law, and some version rides on the books of most civilized jurisdictions. We recognize that impaired people shouldn’t be invited or permitted to become more impaired. Serving staff — whether it’s at a bar, a banquet or a retail outlet — are trained to recognize the signs of impairment and have the authority to turn down the request for one more round.

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Gas station attendants on the hook for impaired drivers? Not a chance Back to video

But a recent decision by New Mexico’s Supreme Court, as reported by Autoblog recently, has introduced a spanner to the works. What if you sell gasoline (or diesel, or, I guess, have an EV charging station) and allow an impaired person to purchase said fuel before hitting the road? In Tennessee, a place notorious for sticky drinking laws (and numerous dry counties), it’s already the law. This New Mexico ruling heads that state in the same direction.

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Think about that for a moment. While the resulting verdict came from a terrible fatality whereby,  “[a]fter refueling and returning to the highway, that driver crossed the centre line and crashed into an oncoming vehicle, killing its occupant,” punching the blame onto the person behind the counter of a gas station opens up a hornet’s nest of questions. Is it fair?

If this were 1950 and you pulled up to a gas pump, one attendant would ask if you wanted a fill-up, another would start cleaning your windshield, another might be checking the pressure in your tires and you’d go in to pay a cashier who might be chatting with a stock boy. Welcome to 2021: you probably pay at the pump and leave, never seeing anyone who works there. If you do enter the store to pay, a lone person manning the cash, often behind plexiglass for safety, takes your money for the gas and Cheetos and asks if you need a receipt.

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In New Mexico and Tennessee, this lone person can now be held responsible for the behaviour of someone who is high and/or drunk. How does this work if they’ve paid at the pump and taken off? How do you know this isn’t a passenger wobbling before you and not the driver? Do you want to be the minimum wage warrior, working alone, who turns down a possibly armed (probably; who are we kidding?) drunk who is trying to fuel up their vehicle? New Mexico has a drunk driving problem , ranking among the worst in the U.S. 

They’ve taken steps to address this. In one county, hard liquor is banned from being sold at gas stations. As of July 1st of this year, they’ve banned the sale of “minis” — those little bottles of booze you find on airplanes or in a hotel minibar. You can still get them in those places, but you can no longer buy them at the retail level. They apparently also created a huge litter problem; people toss ‘em back and chuck ‘em out the car window. Nice. 

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The lone dissenting judge put her finger on three salient points : “It is unclear whether erratic behavior observed through a window gives rise to a duty to investigate, for example, and the majority [decision] provides no guidance as to how that investigation should occur.” While in most places, outlets are legally obliged to refuse to sell alcohol to an intoxicated person, and we’re talking about gas stations that do sell alcohol, it is fair to say that the person behind the counter has had the training to recognize impairment. But the dissenting judge goes on to question just how far-reaching this law could be interpreted: what about people buying gasoline in a container? How could a clerk know its ultimate destination, be it a vehicle or lawnmower? And, “[f]inally, under the majority’s reasoning, vendors of any item that enables DWI — not only gasoline — could now be liable for a customer’s DWI-related torts. Thus auto parts stores, tire shops, mechanics, and others will be left guessing as to whether they are subject to the new duty and, if so, how to behave so as to avoid liability.”

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There is no question that impaired driving (and we really do need to encompass all sources of impairment, not just alcohol) is a scourge on our roads. But New Mexico may be following Tennessee out on a legal limb that is putting the onus on the wrong people. The idea that a clerk in a gas station is responsible for possibly enraging someone drunk or drugged, often with no backup, is a bridge too far. I’d be happy to put in a call to authorities (surely a button you could hit, like for robberies, couldn’t be too hard to implement), but facing down an inebriated person? And if that law can be interpreted to include parts, tires and mechanics — anyone or anything that allows a vehicle to run — where does it end?