Should the law be changed?

[Originalist]

People Please Get Rid of the Misconception that there is a legal limit in TX, There is not, the law simply states if you are above 0.08 you are intoxicated. I have arrested many people with a BAC/BrAC below 0.08 and they have been convicted of DWI. Again here is the applicable definition from the Penal Code (Section 49.01)

(2) "Intoxicated" means:
(A) not having the normal use of mental or
physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of
two or more of those substances, or any other substance into the
body; or
(B) having an alcohol concentration of 0.08 or
more.

[KBCraig]

So, intoxication means what the law says in chapter 49, quoted in an earlier post. This clearly allows you to have a drink or two while carrying. I think this might be a bad idea, but that is my opinion. That is probably where the confused part of my earlier statement came in as instructors gave advice and students took it as rules. It also shows that a person is intoxicated if they have lost the normal use of their faculties through any subject OR if they have a .08 BAC. The important part to note is that it is illegal if you have a .08 and you are still capable of doing anything you normally can.

I will add this when it comes to BAC: unless you're driving (a DWI would be prima facie evidence of intoxication), there is no obligation to ever submit to a BAC test. If requested to do so, don't!

We all know that people have a wide range of tolerance to alcohol. My wife and I stand eye to eye and weigh roughly the same (or so I suspect... she's not telling, and I'm not asking!) I drink beer pretty regularly, and I've always had a high tolerance. I could drink 12 over the course of a 4 hour football game, and no one would notice any difference. She, on the other hand, can have half a glass of wine and curl up to sleep before she finishes even that.

(Let me point out here that I never drink and drive, and drink very rarely outside my own home, and then only 1-2 drinks, max; perhaps 4-5 times in the last decade have I had even that.)

Intoxication can be established by the testimony of the officer, about specific things someone does to demonstrate that they do not have "normal use of mental or physical faculties", but it's much harder. Sure, it can be done, as our LEOs here have said, but they better be spot-on, and they better be able to show that the impairment is because of alcohol or other substance, and not age or disability. My wife hasn't had a sip of alcohol in at least a year, but I guarantee she could not pass a standard field sobriety test in a level parking lot, much less in the gravel at the side of the road. Her sense of balance just isn't up to it; stone sober she couldn't do as well as a 21 year old athlete with a good buzz.

"Implied consent" only applies to operators of motor vehicles. If you're not driving, do not consent!. They might very well prove you're intoxicated, but you should not help them make their case. The stakes are just too high.

And again, I do not support either driving or carrying while intoxicated, but I do recognize that "intoxicated" is best defined by one's specific actions, not an arbitrary BAC reading.

[Originalist]

While I agree some people are not, how should I say "mechanically inclined" to perform the walk and turn or the one leg stand but there is the Horizontal Gaze Nystagmus (a test of the eyes) that requires NO balance and proven to be accurate for determining a BAC of .10 or higher over 80% of the time, using that with some phsychomotor skills tests (divided attention, finger dexterity, even the simple alphabet and counting can be used). Additionally, the officers observations would be used (i.e. did you hit a curb, stop in the middle of the road, etc.). I personally got a conviction based on the HGN (because they were over 60, 50+ lbs overweight and had bad knees), the tests mentioned above and my observations. No walk and turn, no one leg stand and no proof of actual BAC/BrAC, as they refused the implied consent. I will tell you, without the BAC/BrAC, you better be SPOT ON with your documentation and your knowledge of the SFSTs, etc. That defense attorney was a parana!

[KBCraig]

While I agree some people are not, how should I say "mechanically inclined" to perform the walk and turn or the one leg stand but there is the Horizontal Gaze Nystagmus (a test of the eyes) that requires NO balance and proven to be accurate for determining a BAC of .10 or higher over 80% of the time...

I know NHTSA advocates it, but the HGN is somewhat controversial. It's accepted by some states, but not all.

http://www.california-drunkdriving.org/ ... _gaze.html" onclick="window.open(this.href);return false;

... using that with some phsychomotor skills tests (divided attention, finger dexterity, even the simple alphabet and counting can be used). Additionally, the officers observations would be used (i.e. did you hit a curb, stop in the middle of the road, etc.). I personally got a conviction based on the HGN (because they were over 60, 50+ lbs overweight and had bad knees), the tests mentioned above and my observations. No walk and turn, no one leg stand and no proof of actual BAC/BrAC, as they refused the implied consent. I will tell you, without the BAC/BrAC, you better be SPOT ON with your documentation and your knowledge of the SFSTs, etc. That defense attorney was a parana!

Yup, that's what I meant. It's hard to get an conviction for intoxication without having everything thoroughly documented, preferably on video.

My point is this: it is against the defendant's self-interest to cooperate in producing evidence against himself. There is no implied consent, nor any obligation to take a field sobriety test (including HGN), unless driving. So, don't!

[Originalist]

Even though it makes my job easier........ I CONCUR

[srothstein]

And one other point, generally forgotten, that goes with Kevin's note. Not only is the BAC test only required when driving, the participation in field sobriety tests is NEVER required. They are an attempt to gather evidence against you.

Now, I have to admit that the SFST's can also be used to your advantage. Many officers are actually very poor witnesses, especially rookies. If the SFST is taped, and you did no perform very badly, it can actually help in front of a jury. The officers are trained and know what to look for, but the jury does not. They just see the tape. A person falling or staggering helps convince them quickly (a la the popular youtube video of the guy who falls when the officers asks for help marking a line). But, a person who appears close to normal and is just not quite stepping on the line or heel to toe properly gives clues the officers see but the jury overlooks. Of course, a good prosecutor and officer-witness can make these points to the jury, but a good defense attorney can make it look better to them.

And SFSTs almost never show the HGN. Not only do patrol car cameras not catch the eyes, but very few of the people on juries even know what nystagmus is to look for on the tape.

So, you have a real choice now, and it depends on how intoxicated you are. The tests are optional and a good test can help in court while a bad test is good evidence against you.

And Byron (and Morgan), the point you missed is that the limit is the exact same as for driving. If you have a BAC of .08, you are intoxicated for carrying, driving, boating, flying, etc. If you have lost the normal use of your faculties, through ingestion of any matter at all (including prescription drugs taken according to the doctors orders) you are intoxicated for carrying, driving, boating, etc.

There is a strict legal definition for intoxication and it applies to carrying as well as driving. The only difference between the two is that the test for driving is pre-consented to when you get your license and you can legally refuse the BAC test (blood breath or any other) when just carrying.

[Morgan]

Thanks for the clarification, Steve. See, my confusion comes in because I was given incorrect (and far more conservative) advice in my CHL class. The instructor said that the .08 number in Texas Penal Code was relevant only to DUI. He stated that since the penal code and handgun laws did not establish what the limit was for carrying a handgun, that in essence a person could be charged with a handgun-alcohol offense at .01, with ANY ALCOHOL AT ALL in their system.

I see now that this is inaccurate, and the .08 or "not having the normal use of mental or physical faculties" is the GENERAL definition of intoxicated for all penal violations involving alcohol.

So I appreciate knowing that once I have my license, I won't (very likely) be in violation if I have a single glass of wine with a meal. I'm not much of a drinker, but I do like to have a glass of wine when I go to dinner.

[bdickens]

That puts my mind at ease, too.

[nitrogen]

Wait. There is NO implied consent in Texas? Seriously?

Not that I don't trust you folks (Trust, yet verify) I'd love to see quotes in Texas Law to verify this...

[Originalist]

Wait. There is NO implied consent in Texas? Seriously?

Not that I don't trust you folks (Trust, yet verify) I'd love to see quotes in Texas Law to verify this...

What they are trying to say is there is no implied consent when it comes to "carrying while intoxicated" There very much is implied consent for DWI

[nitrogen]

Wait. There is NO implied consent in Texas? Seriously?

Not that I don't trust you folks (Trust, yet verify) I'd love to see quotes in Texas Law to verify this...

What they are trying to say is there is no implied consent when it comes to "carrying while intoxicated" There very much is implied consent for DWI

OHHHH.

Ok, gotcha.

[atxgun]

I think the idea is even if you're acting completely responsible and drinking your ginger ale you are in an environment with *other* people that are intoxicated and more likely to start something and put you in a position where you would be justifiable in using force to defend yourself.

Maybe some drunk guy doesn't like the song you picked on the juke box and decides he needs to pick a fight with you.

[Dave01]

I think the idea is even if you're acting completely responsible and drinking your ginger ale you are in an environment with *other* people that are intoxicated and more likely to start something and put you in a position where you would be justifiable in using force to defend yourself.

Maybe some drunk guy doesn't like the song you picked on the juke box and decides he needs to pick a fight with you.

So what your saying is that the legality of carrying is now dependent on the level of responsibility of those around me? I can no more prevent the actions of a drunk guy at the bar than I can those of a criminal intent on doing harm. I should however be able to protect myself against such actions regardless of location, as long as MY judgement is not impaired by alcohol or other substances.

[atxgun]

I think the idea is even if you're acting completely responsible and drinking your ginger ale you are in an environment with *other* people that are intoxicated and more likely to start something and put you in a position where you would be justifiable in using force to defend yourself.

Maybe some drunk guy doesn't like the song you picked on the juke box and decides he needs to pick a fight with you.

So what your saying is that the legality of carrying is now dependent on the level of responsibility of those around me? I can no more prevent the actions of a drunk guy at the bar than I can those of a criminal intent on doing harm. I should however be able to protect myself against such actions regardless of location, as long as MY judgement is not impaired by alcohol or other substances.

Yeah, I guess that's pretty much what I was saying. To be clear I don't agree with the law, just my thoughts on the rational of those that drafted it. Of course this theory is all just conjecture.

For me though I don't go to bars to drink ginger ale so I'm unarmed anyway. It would be comforting to know there were sober CHLers around in the event someone went ballistic.

[KBCraig]

Thanks for the clarification, Steve. See, my confusion comes in because I was given incorrect (and far more conservative) advice in my CHL class. The instructor said that the .08 number in Texas Penal Code was relevant only to DUI.

That used to be the consensus among even our legal beagals, too. We've talked about the subject for so long, that I forget whose analysis changed everyone's mind, or what the argument was.

I sometimes catch myself starting to say that 0.08 BAC only applies to driving, then something clicks in the back of my head and I remember to bite my tongue on that.

He stated that since the penal code and handgun laws did not establish what the limit was for carrying a handgun, that in essence a person could be charged with a handgun-alcohol offense at .01, with ANY ALCOHOL AT ALL in their system.

The second part is true enough. You can also be charged with DWI or any other intoxication offense at 0.01 or any other amount of alcohol in your system, if the officer can establish that you don't have normal control of your faculties. He doesn't have to prove that there is any alcohol in your system at all.

The difference is that a confirmed BAC of 0.08 or higher, you're automatically presumed to be intoxicated. It's the same as driving 1mph over the limited is presumed to be "unsafe speed". (And we all know that with both alcohol and speed, there is no absolute safe limit.)