There is no conclusive evidence that Profenno’s Pizzeria and Pub should have stopped serving alcohol to Jana Pooler on the night in May when she rolled her car on the Westbrook Arterial and was fatally injured, according to the findings of a police investigation.

Now, the state’s Liquor Licensing and Compliance Unit is reviewing the case, and Pooler’s family is considering suing Profenno’s.

Westbrook police say Pooler, 21, of Portland, was driving drunk when her Chevrolet Aveo crashed May 21. Pooler was ejected from the car and killed. Her passenger, Danielle Duguay, 24, of Westbrook, was injured.

The accident happened around 1:15 a.m. Pooler’s blood-alcohol content was 0.16 percent at 2:06 a.m., twice the legal limit for driving.

Early in their investigation, police declined to release the name of the bar in Westbrook where Pooler and Duguay had been drinking because they believed Pooler may have been overserved.

Detective Sgt. Patrick Lally confirmed Tuesday that Pooler and Duguay were at Profenno’s, a popular pub in downtown Westbrook. He said Pooler drank beer and at least one shot of liquor. He said it’s possible that she drank one beer before going to the bar, because he found an empty beer bottle at her apartment.

Lally said he talked to nearly 20 witnesses, including bar employees and Pooler’s friends, and they said Pooler wasn’t visibly intoxicated.

Lally said Pooler was dancing, and talking and texting with her friends. He also said she drank heavily on a regular basis in the months before the accident.

Lally said it’s “inconclusive” whether Profenno’s overserved her.

“Her tolerance to alcohol would be higher than a normal person,” he said. “The tough part is for a bartender (to determine) if the person is visually intoxicated. If there is a civil case, that will be a big issue.”

The state’s Liquor Licensing and Compliance Unit is reviewing the police report. Jeff Austin, supervisor of liquor licensing, said it’s standard to review an incident involving a licensee. He said that in its records, which date back to 2001, Profenno’s has never been cited for an administrative violation.

Penalties range from a $550 fine to a suspension or license revocation. The state’s review is expected to be complete by the end of this month.

Gary Prolman, the lawyer who represents Profenno’s, said he spoke to several people who were at the bar that night and they said Pooler was not overserved. He said Profenno’s has a long history of great bar service and has never been cited for misconduct.

“It’s unfortunate and a tragedy, and the Profennos were really saddened about what happened,” he said. “But they have no liability in this case.”

Police say Pooler could have survived the crash if she had been wearing her seat belt. Lally said her seat belt was locked in a retracted position. Duguay’s seat belt was locked with some slack, which indicates she was wearing it, he said.

Pooler’s mother, Julie McPhail of Portland, said she and her ex-husband have considered suing Profenno’s but have not consulted with an attorney.

“We are unsure what to do,” she said. “It’s been really hard. We still can’t believe it.”

McPhail described her daughter Tuesday as a compassionate and generous person who supported her family and friends.

At the time of her death, Pooler was a personal care specialist at Fallbrook Woods Assisted Living in Portland and at Casco Bay Home Care in Yarmouth.

Pooler also was an organ donor. Her lungs were donated to a 39-year-old man with cystic fibrosis who has four young children.

Her left kidney and liver were donated to a 57-year-old man with diabetes who has three children. Her right kidney went to a 57-year-old woman with two children. McPhail said she has found comfort in knowing that a part of her daughter will live on in others.

“It has been very hard,” she said. “Young people think they are so invincible. A tragedy like this can happen so easily.”

 

Staff Writer Melanie Creamer can be contacted at 791-6361 or at: mcreamer@pressherald.com