A guy stumbled in at 10 PM. He smelled like tequila but spoke clearly. He wanted his girlfriend’s name. I did it. Two weeks later, he sued me for battery, claiming he lacked the “capacity to consent” because he was intoxicated. He wanted a refund and laser removal. I pulled out his signed waiver. My lawyer frowned. “He signed this while drunk? It’s trash.”
Key Takeaways
- Capacity to Consent: A contract (waiver) signed by an intoxicated person is legally voidable. If they can prove they were drunk, the waiver means nothing.
- “Impairment” Exclusion: Professional Liability policies often exclude claims arising from services performed on anyone “under the influence of drugs or alcohol.” If you tattooed a drunk guy, your insurance might abandon you.
- Video Evidence: In 2026, a lobby camera with audio is your best defense. If the video shows him walking straight and speaking coherently, you can argue he was capable of consent.
- Refusal Rights: You have the right (and duty) to refuse service. ” Smell of alcohol” is enough.
The “Why” (The Trap): The “Battery” Allegation
Tattooing without valid consent is technically Battery (criminal and civil).
Insurance covers negligence (accidents). It often excludes Criminal Acts or Intentional Torts (like Battery).
If the court rules the consent was void due to intoxication, you essentially attacked him with a needle. Insurance does not cover you for attacking people.
The Investigation: “I Called Them”
I asked adjusters about the “Drunk Walk-In.”
1. The Defense Lawyer
- Opinion: “The waiver is evidence, not a shield. If the plaintiff has an Uber receipt showing he came from a bar at 9:50 PM, you lose.”
2. The Insurance Underwriter
- Policy: “We exclude services rendered to impaired persons. If you admit he smelled like tequila, we deny coverage.”
3. Digital Waiver Companies
- Feature: New waiver apps record a 10-second video clip of the client stating their name and “I am sober.”
- Value: Gold. This visual proof of sobriety usually stops the lawsuit before it starts.
Comparison Table: Proving Sobriety
| Evidence | Legal Strength | Insurance Value |
| Paper Waiver Signature | Low (easy to dispute) | Medium |
| “I am Sober” Checkbox | Low | Medium |
| Lobby Video/Audio | High | High |
| Breathalyzer (Rare) | Absolute | Absolute |
Step-by-Step Action Plan
- The “Sober Video” Protocol: Have your front desk tablet record the client answering “Are you under the influence?” during the check-in.
- Zero Tolerance Policy: Post a sign: “We do not tattoo anyone under the influence. Deposit forfeited.” Point to it.
- Trust Your Gut: If they are loud, slurring, or stumbling, turn them away. The $200 walk-in isn’t worth the $5,000 lawsuit.
- Document Refusals: Keep a log of people you turned away. It shows a pattern of responsible business practice.
FAQ
Q: What about weed?
A: Same rule. If they are visibly high, they cannot legally consent. Even if it’s legal in your state, “capacity” is the issue.
Q: Can I keep the deposit?
A: Yes. If they show up drunk, they breached the appointment terms. Keep the deposit.
[IMAGE: Screenshot of a waiver app interface showing the “Video Consent” recording feature.]