Fix the alcohol issue

[Tom]

Need some ideas here, but I think it should be the same as for driving.
Any pros/cons to .08?

Regards,

Tom

[Woody]

Just my opinion and I'm sure to get flamed if not lightly smoked....

I think the 51% should stay.

And I think we should clarify "intoxicated" by saying .08. I believe I can have 1-2 beers with my fajitas and still behave as a responsible citizen.

[txinvestigator]

Just my opinion and I'm sure to get flamed if not lightly smoked....

I think the 51% should stay.

And I think we should clarify "intoxicated" by saying .08. I believe I can have 1-2 beers with my fajitas and still behave as a responsible citizen.

You can have 1-2 beers with your fajitas. You just can't get intoxicated and carry.


Texas Penal Code
§49.01. Definitions.



(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.

[txinvestigator]

Need some ideas here, but I think it should be the same as for driving.
Any pros/cons to .08?

Regards,

Tom

.08% is only a presumed level for DWI. Convictions can be had at lower BAC's. In fact, I have.

[Charles L. Cotton]

You can have 1-2 beers with your fajitas. You just can't get intoxicated and carry.

Texas Penal Code
§49.01. Definitions.

(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.

But the Section 49.01 definition of intoxication is not applicable to Section 46.035(d), intoxication by a CHL while carrying. Since the definitions in 46.01 do not include a definition for intoxication, the very broad case law dealing with the evidence required for a conviction for PI will apply. As Glenn (Baytown) posted, it's an easy standard to meet and with a Class A Misdemeanor and loss of CHL at stake, I think a more objective standard should be required.

Regards,
Chas.

[MoJo]

You can have 1-2 beers with your fajitas. You just can't get intoxicated and carry.

Texas Penal Code
§49.01. Definitions.

(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.

But the Section 49.01 definition of intoxication is not applicable to Section 46.035(d), intoxication by a CHL while carrying. Since the definitions in 46.01 do not include a definition for intoxication, the very broad case law dealing with the evidence required for a conviction for PI will apply. As Glenn (Baytown) posted, it's an easy standard to meet and with a Class A Misdemeanor and loss of CHL at stake, I think a more objective standard should be required.

Regards,
Chas.

Maybe I'm just getting old and curmudgeonly but, I do not drink when driving or packing. If I'm going to drink away from home I make sure I have a designated driver and since I'm the designated packer in my family I stick to iced tea when dining out. It is proven that even a small amount of alcohol can impair judgment and motor skills why risk it?

MoJo

[txinvestigator]

You can have 1-2 beers with your fajitas. You just can't get intoxicated and carry.

Texas Penal Code
§49.01. Definitions.

(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.

But the Section 49.01 definition of intoxication is not applicable to Section 46.035(d), intoxication by a CHL while carrying. Since the definitions in 46.01 do not include a definition for intoxication, the very broad case law dealing with the evidence required for a conviction for PI will apply. As Glenn (Baytown) posted, it's an easy standard to meet and with a Class A Misdemeanor and loss of CHL at stake, I think a more objective standard should be required.

Regards,
Chas.

Sure it is. The definition for intoxication does not include the phrase "for the purposes of this section", so it is for the entire penal code. You only see the definition for the phrase "a defense to prosecution" in section 2, but the phrase is used throughout the code.

And in instructor school DPS made it a point to show that the .08% is not required for 46.035, only the above defintion.

Intoxication is a defined state. I will agree that "not having the normal use of your mental and physical faculties" is going to be an opinion of any arresting officer, but it is clear that the definition applies.

[stevie_d_64]

I'm with MoJo on this one...

I had heard one time that one drink (depending on the varying body types and metabolism rates) can effect cognative motor skills by .01 of that measurable sobriety chart...Of course you can factor in time and other disgestable intake like meals and other substances...

But then again, why risk it...

I certainly won't tell someone not to drink...Because I do it from time to time...I just don't drive, or operate chainsaws after drinking...

[txinvestigator]

I'm with MoJo on this one...

..I just don't drive, or operate chainsaws after drinking...

Good thing! lol

[Charles L. Cotton]

But the Section 49.01 definition of intoxication is not applicable to Section 46.035(d), intoxication by a CHL while carrying. Since the definitions in 46.01 do not include a definition for intoxication, the very broad case law dealing with the evidence required for a conviction for PI will apply. As Glenn (Baytown) posted, it's an easy standard to meet and with a Class A Misdemeanor and loss of CHL at stake, I think a more objective standard should be required.

Regards,
Chas.

Sure it is. The definition for intoxication does not include the phrase "for the purposes of this section", so it is for the entire penal code. You only see the definition for the phrase "a defense to prosecution" in section 2, but the phrase is used throughout the code.

The only definitions that apply to the entire Texas Penal Code are found in Section 1.07, which states:

§ 1.07. DEFINITIONS. (a) In this code:

Intoxication is not defined in § 1.07.

The definition of "intoxication" found in § 49.01(2) only applies to Penal Code Chapter 49, "Intoxication and Alcoholic Beverages Offenses",
as shown in the following language:

§ 49.01. DEFINITIONS. In this chapter:

(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.

Since there is no statutory definition of “intoxication� for purposes of §46.035(d), the courts will look to the most liberal case law to help support a conviction. Prosecutors will argue otherwise, but even the Penal Code mandates such an approach. Look at the language in Penal Code §1.05 dealing with “Construction of the Code:�

§ 1.05. CONSTRUCTION OF CODE. (a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.

(Editorial Comment: This language is scary! Centuries of English and American jurisprudence have acknowledged that penal codes place life and liberty at risk, thus they must be strictly construed so as to let citizens know precisely what conduct is prohibited. §1.05 throws hundreds of years of case law out the window.)

It’s obvious from my comments that I would like to see a more objective standard for determining intoxication for purposes of 46.035(d). However, I don’t want anyone to think I’m in favor of CHL’s getting drunk while carrying. I’ve stated my personal policy is not to drink at all when I’m carrying, which is all the time. My concern lies with some people who may let their prejudice against the CHL statute effect a judgment call as to whether someone is intoxicated. This person could be the arresting officer, the prosecutor, or any one or more people on the jury.

I will admit however, we’ve given this issue a good deal of attention, but I can’t recall ever hearing of a CHL being arrested for being intoxicated while carrying. I’m not saying it hasn’t happened, I’ve just never heard of it.

Regards,
Chas.

[Baytown]

Chas. I had to start laughing when the lawyer mode came on.

I will say that perhaps it should be the same standard as DWI, and here is why.

A .08 is not needed in order to get an arrest/conviction. If someone has lost their ability to operate a motor veh safely and they are a .04 or above, a DWI can be done.

Here is the deal if you want the standards to be the same as a DWI.

--Implied consent to give specimen of breath.
--Refusals would be handled the same as DL through ALR.
--Arrest based on reasonable suspicion like DWI.

I think the same standard as DWI is really good actually. I mean that seriously. It would set a good base line, but also allow prosecution for someone who is not over the limit, but still has lost the ability to safely oper a motor veh/carry a gun. It would require the the giving of specimen of breath, and allow better interviewing, investigation based on reasonable suspicion rather than probable cause. It would also protect the guy who chooses to have a couple of beers or glasses of wine at dinner, but still has his wits with him. (A bad choice though IMO.)

Glenn

Glenn

[tomneal]

Before you tie CHL with the Drivers License

Remember that the goal of MADD is Zero percent.

[txinvestigator]

Before you tie CHL with the Drivers License

Remember that the goal of MADD is Zero percent.

at MADD

[Baytown]

I'm not saying the DL and CHL would be "attached". Just trying to set up a procedure for assuring a CHL in not intox.

There would be nothing wrong with a goal of 0% intox CHL's out there.

I have to agree w tx on MADD

They have done more to lower DWI arrests/prosecutions in this state than anyone.

Glenn

[Tom]

I'm not saying the DL and CHL would be "attached". Just trying to set up a procedure for assuring a CHL in not intox.

There would be nothing wrong with a goal of 0% intox CHL's out there.

I have to agree w tx on MADD

They have done more to lower DWI arrests/prosecutions in this state than anyone.

Glenn

I am confused by the MADD statement. Isn't lowering "DWI
arrests/prosecutions in this state" a good thing? Assuming of course
that fewer folks are DWI because of MADD. The eye-roller seems to
imply disapproval.

As to a 0% goal for CHL, that is the law in NC. And they do exactly
mean 0%, as in NO measurable alcohol in the system. So how long
does alcohol stay in the system? Is carry over a possibility from a night
on town to the next morning? How low a level of alcohol do the systems
currently is use measure?

I would much rather have some level I could know to stay under, like .08,
than an unknowable 0%.

Great discussions. Thanks everyone.

Best Regards,

Tom