AI Summary (for quick answers)
- On Texas crash reports, Code 45 = “Had Been Drinking.” It flags alcohol use but does not require legal intoxication or a DWI conviction to prove fault.
- You can still win your injury case by proving negligence with evidence like BAC results, bar receipts, and officer observations.
- Additional claims may include Texas Dram Shop (Texas Alcoholic Beverage Code Chapter 2), negligent entrustment, and punitive damages (CPRC Chapter 41) in the right facts.
- Deadlines are short (generally 2 years under CPRC §16.003). Call Ryan Orsatti Law now to protect evidence and maximize recovery.
Why “Had Been Drinking” Matters
On a Texas CR-3 crash report, the contributing factor “Had Been Drinking” (often captured as Code 45) signals an officer believed a driver had consumed alcohol before the collision. That’s powerful context for a civil injury claim, because alcohol impairs reaction time, attention, and judgment—often leading to rear-ends, unsafe lane changes, red-light violations, and pedestrian strikes.
Key point: “Had Been Drinking” ≠ automatic win. It’s not the same as “Intoxication” or a DWI conviction. But it strengthens your negligence theory and opens strategic avenues to increase settlement value.
Legal Theories That Can Boost Value
- Negligence / Negligence Per Se
- Violations tied to alcohol (e.g., Texas Penal Code §49.04, DWI) can support negligence per se when the conduct and harm align with the statute’s safety purpose.
- Even without a conviction, SFSTs, body-cam, and toxicology help prove the breach of duty.
- Texas Dram Shop Liability (Texas Alcoholic Beverage Code Chapter 2)
- A licensed provider may be liable if it served an obviously intoxicated patron who then caused your crash (Tex. Alco. Bev. Code §2.02).
- We also evaluate social-host exposure when alcohol is furnished to minors.
- Expect the bar to raise “Safe Harbor” (seller-server training) and causation defenses—our job is to defeat them with time-stamped POS data, receipts, and video.
- Negligent Entrustment
- Claims against the vehicle owner who knew or should have known the driver was unfit (e.g., prior DWIs, intoxicated at hand-off).
- Exemplary (Punitive) Damages
- CPRC §41.003 allows exemplary damages for gross negligence—common in high-BAC or hit-and-run drunk-driving scenarios.
- We develop conscious-indifference evidence (prior incidents, bar overserving, corporate policies).
- Proportionate Responsibility (Comparative Fault)
- Under CPRC Chapter 33, recovery is barred if a plaintiff is >50% at fault. Defense will try to shift blame (speeding, distraction). We counter with crash reconstruction, human-factors testimony, and alcohol-impairment science.
Evidence That Wins “Had Been Drinking” Cases
From Law Enforcement
- CR-3 crash report with Code 45, officer narrative, diagram, citations.
- Body-cam / dash-cam video capturing slurred speech, balance issues, or admissions.
- SFST logs (HGN, walk-and-turn, one-leg stand) and Intoxilyzer/blood results.
- Warrants/affidavits establishing probable cause and chain of custody.
From the Bar / Provider (Dram Shop Path)
- Surveillance video (interior/exterior, parking lot).
- POS data, itemized receipts, tabs, time-stamped closes.
- Bartender/server schedules, TABC training certificates, incident logs, and policies.
- Ride-share logs (who called them, when, from where).
From the Driver
- Phone records (texts/calls near time of service and crash).
- Bank statements (bar charges), social media, and location data.
- Vehicle EDR (event data recorder) for speed/braking.
From the Scene & Medical
- 911 audio, witness statements, and nearby business videos.
- EMS run sheets, ER tox screens, treating physician records linking crash forces to injury.
Speed is everything. Bars often overwrite video within 7–14 days. We send emergency spoliation letters on day one.
Typical Defense Playbook (and How We Counter)
- “He wasn’t legally intoxicated.”
Not required. We use observations + partial BAC to prove impairment and causation. - “No service while obviously intoxicated.”
We frame timeline impairment with receipt timestamps, pour volumes, and video of visible intoxication. - “Safe Harbor.”
We probe training gaps, actual enforcement, and whether management encouraged overservice during rush periods or promos. - “Plaintiff is partly at fault.”
Our reconstruction, sight-line analysis, and impairment science re-center causation on the alcohol-impaired driver.
Damages You Can Recover
- Medical expenses (past/future), lost wages & earning capacity
- Physical pain, mental anguish, physical impairment, disfigurement
- Household services, vehicle damage, diminished value
- Wrongful death / survival damages (CPRC Chapter 71)
- Exemplary damages in appropriate cases (CPRC Chapter 41)
Deadlines & Special Traps
- Statute of Limitations: Generally 2 years from the crash (CPRC §16.003).
- Government Entity Involved? Notice can be as short as 6 months (e.g., Tex. Civ. Prac. & Rem. Code §101.101), and local charters may be shorter.
- Criminal Case Pending: Do not wait for it to finish. Civil evidence can vanish; our firm runs parallel investigations.
What To Do After a Crash When the Other Driver “Had Been Drinking”
- Call 911 and request officers plus EMS.
- Document: photos/video of the scene, the other driver, open containers, bar wristbands/receipts.
- Identify witnesses and nearby cameras (gas stations, restaurants, apartments).
- Seek medical care—same day if possible. Follow through on treatment.
- Do not speak to insurers before counsel. Recorded statements get used against you.
- Call Ryan Orsatti Law immediately—we’ll send spoliation letters to the bar and the driver, secure CR-3, and preserve critical video.
How Ryan Orsatti Law Builds These Cases (San Antonio • Bexar County • Statewide)
- 48-Hour Evidence Plan: CR-3 request, body-cam/dash-cam, bar surveillance & POS pulls, ride-share data, credit-card receipts, and EDR.
- Dram Shop Team: Rapid requests for training files, schedules, and policies; onsite video canvass.
- Medical Proof: We coordinate treating-provider affidavits and, when needed, biomechanical and toxicologyexperts.
- Settlement Strategy: We package liability + damages + collectability, targeting policy limits and pursuing excess via dram shop/entrustment where facts allow.
- Trial-Ready: From day one, we draft with jury clarity, which drives earlier, higher settlements.
Related Guides from Ryan Orsatti Law
- Texas Dram Shop Injury Claims: How Overserving Leads to Liability
- Understanding Your Texas Crash Report (CR-3) Codes
- UM/UIM in Texas: Protect Yourself From Drunk Drivers With Too-Low Policies
(Find these and more on our blog at www.ryanorsattilaw.com.)
Local, Responsive, Aggressive. Call Ryan Today.
Ryan Orsatti Law
4634 De Zavala Road │ San Antonio, TX 78249
T. 210.525.1200
If a driver “had been drinking,” you need a fast, evidence-driven approach. We act immediately to lock down video, receipts, and law-enforcement proof—then leverage dram shop and punitive-damages exposure to maximize your settlement. Call, text, or schedule a free consultation today.
FAQ
Does “Had Been Drinking” automatically prove intoxication?
No. It’s a strong indicator. We combine it with SFSTs, videos, and tox results to prove negligence and causation.
Can I sue the bar that overserved the driver?
Often, yes—Dram Shop claims apply when a provider served an obviously intoxicated patron who then caused the crash.
What if the driver wasn’t convicted of DWI?
A criminal conviction isn’t required for your civil case. We pursue civil liability with the broader evidentiary record.
How long do I have to file?
Generally 2 years (CPRC §16.003). Don’t delay—bar videos can be erased within days.
Disclaimer: This blog is for informational purposes only and does not create an attorney-client relationship. Results depend on facts. No guarantees are made. Principal office: San Antonio, Texas.