Dram Shop: Can The Intoxicated Driver Be Compelled To Produce His Toxicology Report While The Criminal Proceeding Is Still Pending?

• Published date: 08 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: Kane Russell Coleman Logan
• Author: Joy Winkler and Michael Logan

Imagine two best friends, one a former Dallas Cowboys player and the other, a former player on the Cowboys' practice team. After a night of dinner with teammates and drinking at a club, the former player loses control of his car driving them home, and kills his best friend.

This tragedy was litigated in a recent Texas case. Former Cowboys player Joshua Brent and his best friend, Jerry Brown, Jr. had been drinking at Private Lounge ¹ As Brent was driving, he lost control of the vehicle, resulting in Brown's death. Brent was first tried and convicted of intoxication manslaughter, and he served 180 days in jail. Brown's mother then filed a civil suit against Brent, the bar, and the bar's management company under the Texas Dram Shop Act. The trial court awarded a total of $25 million in damages, with $12 million assessed against the bar and its management company and $13 million against Brent.

In criminal cases, the U.S. Supreme Court has ruled that blood alcohol test results, in particular, are not self-incriminating because they are not testimonial communications and, therefore, cannot be withheld based on a claim of the Fifth Amendment privilege.

What if Brent's criminal trial had not been resolved by the time Brown's mother filed and prosecuted her civil suit? Could Brent have been compelled to produce his toxicology report in the civil suit, or could he have asserted his Fifth Amendment privilege against self-incrimination and refused to produce it?

The Fifth Amendment privilege has been held to extend to prevent the production of some documents in civil cases. However, the Fifth Amendment privilege against self-incrimination does not offer a blanket protection against producing any potentially self-incriminating information; rather, it has been held to protect the person asserting the privilege only from compelled self-incrimination. The contents of documents ordinarily are not privileged when they are created voluntarily and without compulsion.² This means that the Fifth Amendment would not protect a party from producing, for example, his business records, even if the contents of those records were incriminating to him, if those records had been voluntarily prepared.

The question arises, then, whether potentially self-incriminating documents such as blood alcohol test results, which are often the result of an involuntary blood draw, are protected from discovery when the civil litigation precedes the resolution of the criminal proceedings and the driver...