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Re: Carrying while Intoxicated
Posted: Wed Oct 13, 2010 8:22 pm
by ScottDLS
cheezit wrote:so far as I know there is no legal limit stated in the law, so what is legal is very open to case law still. AFAIK it has been readto mean as 0%
There
IS a legal limit that is statutorily defined as
being intoxicated, and that is 0.08. As you have stated there is no definition of what is NOT intoxicated. I think what the OP was pointing out is that it is not up to you to prove you
aren't intoxicated, it is up to the State to prove (beyond a reasonable doubt) that you were. This is the way we should want it...DWI... and 46.035(d) are criminal offenses and the burden should fall on the State to prove them.
GC §411.171. DEFINITIONS. In this subchapter:
...
(6) "Intoxicated" has the meaning assigned by Section 49.01, Penal
Code.
...
§ 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.
...
Re: Carrying while Intoxicated
Posted: Wed Oct 13, 2010 9:29 pm
by cheezit
.08 is what is stated for dwi, not for drunk and ccw while armed, Or so we were informed at class. would not be the first time.
Re: Carrying while Intoxicated
Posted: Wed Oct 13, 2010 9:33 pm
by psijac
SlickTX wrote:
That's fine to have any belief you wish, but you'd better burn your copy of the Bill of Rights because you really don't like the 4th amendment.
They better not try and quarter soldiers in my house during peace time!
Driving on public roads is also a privilege not a right
Re: Carrying while Intoxicated
Posted: Wed Oct 13, 2010 10:11 pm
by pt145ss
I’m going to preface this by saying that I do not drink very often and when I do, I’m at home and I still only drink one…and on an even rarer occasions I might have two. Let’s just say that a six pack might last a year or more in my house.
My original question is more to the point of… is it smart to refuse FST and specimens in situations where we, as CHL holders, are not compelled by law or warrant/court order to give one? I am leaning towards it being un advisable.
Given my experience as a juror in a dwi case, I saw firsthand the mentality of (this particular) trooper, the mentality of the DAs office and the obvious issues associated with voluntarily giving evidence which can be subjectively scrutinized and used against you. The FSTs are not designed to give you credit when you do something right…they only take away credibility when you do something wrong…for example in the walk and turn, there are a total of 18 steps, heel to toe, in a straight line (9 steps one direction… 9 steps back again) One can get 17 of the 18 steps correct and then mess up on the 18th and the only one counted is the one you messed up on. The 17 correct ones are not counted in your favor to show you have your physical faculties…however…the one misstep is used to show that your physical faculties are impaired.
Re: Carrying while Intoxicated
Posted: Wed Oct 13, 2010 10:31 pm
by pt145ss
cheezit wrote:.08 is what is stated for dwi, not for drunk and ccw while armed, Or so we were informed at class. would not be the first time.
I believe "intoxication" is the same whether applied to driving a motor vehicle or applied to carrying under CHL. in the definition of intoxication it is important to notice the OR in there. The state has to prove beyond a reaonable doubt that the normal use of your mental or physical faculties are impaired due to alcohol or drugs OR you have a BAC of .08 or higher.
in other words one can blow a 0.01 and the state can show your are impaired due to alcohol or drugs and you would be considered "Intoxicated." On the other hand you can be in obvious control of your faculties by juggling tennis balls and doing calculus at the same time...but if you blow 0.08 or higher...you are intoxicated.
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 12:27 am
by Lonest4r
IANAL but I would think that if the person who had been arrested had not taken a field sobriety test, then they would be without a DL for 180 days and had no way to contest the suspension. I am assuming that because the person was found not guilty their DL was reinstated and they did not receive any marks on their record. Therefore, we have a prime example of a time when the field sobriety test has saved someone from damage to their record and the hassle of being without a drivers license. This is assuming also a speedy trial (less than the time that their license would be suspended) and that the lawyer's fees were not worse than the punishment.
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 8:06 am
by stash
A little bit off topic, but from watching the TV show COPS, I am not sure I could pass the FST stone cold sober and I don't have any disabilities.
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 8:56 am
by pt145ss
stash wrote:A little bit off topic, but from watching the TV show COPS, I am not sure I could pass the FST stone cold sober and I don't have any disabilities.
It's interesting you say that, I did not read into it at length, but I found several articles that say the FSTs are only between 83% and 85% affective at accurately identifying impairment due to alcohol and/or drugs. I believe the articles went on to say that 15% of the time, that people who are believed to be impaired actually are not impaired due to alcohol and the perceived impairment is actually caused by something else. To be fair, I did find some articles that claim the test to be closer to 91% accurate at identifying those who have a BAC over 0.08. I'm not sure what that means, I assume the study was only looking a specific segment of the data to reach the 91% accuracy rate.
Again, the question is, is it smart to refuse or is it better to submit to testing, considering the FSTs can provide a false positive 15% of the time?
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 10:02 am
by ScottDLS
pt145ss wrote:cheezit wrote:.08 is what is stated for dwi, not for drunk and ccw while armed, Or so we were informed at class. would not be the first time.
I believe "intoxication" is the same whether applied to driving a motor vehicle or applied to carrying under CHL. in the definition of intoxication it is important to notice the OR in there. The state has to prove beyond a reaonable doubt that the normal use of your mental or physical faculties are impaired due to alcohol or drugs OR you have a BAC of .08 or higher.
in other words one can blow a 0.01 and the state can show your are impaired due to alcohol or drugs and you would be considered "Intoxicated." On the other hand you can be in obvious control of your faculties by juggling tennis balls and doing calculus at the same time...but if you blow 0.08 or higher...you are intoxicated.
In my previous post I quoted the CHL GC §411.171. DEFINITIONS that assigned the meaning of
intoxicated as the same as it is for DWI (TX PC 49.01 DEFINITIONS). So there IS a definition for what intoxicated means. It is not whatever the police want it to be, it is what is defined in the penal code, and it happens to be the same as for DWI. It's kind of disappointing that CHL instructors keep putting bad information out there.
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 11:09 am
by pt145ss
http://www.pittsburghcriminallawblog.co ... ety-tests/
How Accurate Are Field Sobriety Tests?
Posted by Gerald B. McNamara on September 07, 2010
According to a 1991 study (PDF) by Dr. Spurgeon Cole at Clemson University, field sobriety tests give a police officer about a 50-50 chance of accurately predicting whether a driver is intoxicated. Dr. Cole and his team videotaped 21 individuals performing common field sobriety tests and asked 14 police officers to judge whether any were too intoxicated to drive. The officers decided that 46% of the participants were unfit to drive, and presumably, had they actually been driving, they would have been asked to submit to some form of chemical testing. What Dr. Cole did not tell the officers was that none of the 21 participants in the study had anything to drink before performing the field sobriety tests.
It's not very comforting to know that field sobriety tests are about as effective in detecting drunk drivers as flipping a coin. However, this is much more comforting than the results of a 2007 study by the International Council on Alcohol Drugs & Traffic Safety (ICADTS), which showed that police officers correctly perform Standardized Field Sobriety Testing only 3% of the time. Standardized Field Sobriety Tests (or SFST's) are a battery of three field sobriety tests and require specialzed training. These tests are the Horizontal Gaze Nystagmus test (the HGN - or follow the pen with your eyes test), the Walk and Turn test (WAT) and the One Leg Stand test (OLS). Many departments in the area now use these tests.
The 2007 study analyzed 350 videotaped encounters of police officers administering SFSTs to suspected drunk drivers. The results are shocking. The HGN test was properly administered 7% of the time. The WAT test was properly administered 19% of the time. The OLS was properly administered 50% of the time. What is even worse than these results is the correct percentage when looking at the battery of tests given in each of the 350 encounters (and remember, the idea of SFSTs is that these three specific tests are to be given together). The battery of tests was properly administered only 3% of the time. That is not a typo.
These tests simply do not predict with any semblence of accuracy whether a person is intoxicated. For a police officer, administering them in a controlled, classroom setting is not quite like administering them at 3:00 a.m. in a dimly lit area when it's 20 degrees out and you're exhausted from being in court all day.
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 11:19 am
by ScottDLS
pt145ss wrote:http://www.pittsburghcriminallawblog.co ... ety-tests/
How Accurate Are Field Sobriety Tests?
Posted by Gerald B. McNamara on September 07, 2010
According to a 1991 study (PDF) by Dr. Spurgeon Cole at Clemson University, field sobriety tests give a police officer about a 50-50 chance of accurately predicting whether a driver is intoxicated. Dr. Cole and his team videotaped 21 individuals performing common field sobriety tests and asked 14 police officers to judge whether any were too intoxicated to drive. The officers decided that 46% of the participants were unfit to drive, and presumably, had they actually been driving, they would have been asked to submit to some form of chemical testing. What Dr. Cole did not tell the officers was that none of the 21 participants in the study had anything to drink before performing the field sobriety tests.
It's not very comforting to know that field sobriety tests are about as effective in detecting drunk drivers as flipping a coin. However, this is much more comforting than the results of a 2007 study by the International Council on Alcohol Drugs & Traffic Safety (ICADTS), which showed that police officers correctly perform Standardized Field Sobriety Testing only 3% of the time. Standardized Field Sobriety Tests (or SFST's) are a battery of three field sobriety tests and require specialzed training. These tests are the Horizontal Gaze Nystagmus test (the HGN - or follow the pen with your eyes test), the Walk and Turn test (WAT) and the One Leg Stand test (OLS). Many departments in the area now use these tests.
The 2007 study analyzed 350 videotaped encounters of police officers administering SFSTs to suspected drunk drivers. The results are shocking. The HGN test was properly administered 7% of the time. The WAT test was properly administered 19% of the time. The OLS was properly administered 50% of the time. What is even worse than these results is the correct percentage when looking at the battery of tests given in each of the 350 encounters (and remember, the idea of SFSTs is that these three specific tests are to be given together). The battery of tests was properly administered only 3% of the time. That is not a typo.
These tests simply do not predict with any semblence of accuracy whether a person is intoxicated. For a police officer, administering them in a controlled, classroom setting is not quite like administering them at 3:00 a.m. in a dimly lit area when it's 20 degrees out and you're exhausted from being in court all day.
That's a great study. It brings to mind a couple ideas:
- I wonder what the hit rate would have been on 21 people that
were intoxicated? Probably higher than 50%, but still 50% is too high for false positives.
- Maybe the people that failed when sober, shouldn't be driving at all!!! Did you know OVER 50% of car accidents are caused by sober drivers... just sayin'...
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 11:30 am
by pt145ss
ScottDLS wrote:pt145ss wrote:http://www.pittsburghcriminallawblog.co ... ety-tests/
How Accurate Are Field Sobriety Tests?
Posted by Gerald B. McNamara on September 07, 2010
According to a 1991 study (PDF) by Dr. Spurgeon Cole at Clemson University, field sobriety tests give a police officer about a 50-50 chance of accurately predicting whether a driver is intoxicated. Dr. Cole and his team videotaped 21 individuals performing common field sobriety tests and asked 14 police officers to judge whether any were too intoxicated to drive. The officers decided that 46% of the participants were unfit to drive, and presumably, had they actually been driving, they would have been asked to submit to some form of chemical testing. What Dr. Cole did not tell the officers was that none of the 21 participants in the study had anything to drink before performing the field sobriety tests.
It's not very comforting to know that field sobriety tests are about as effective in detecting drunk drivers as flipping a coin. However, this is much more comforting than the results of a 2007 study by the International Council on Alcohol Drugs & Traffic Safety (ICADTS), which showed that police officers correctly perform Standardized Field Sobriety Testing only 3% of the time. Standardized Field Sobriety Tests (or SFST's) are a battery of three field sobriety tests and require specialzed training. These tests are the Horizontal Gaze Nystagmus test (the HGN - or follow the pen with your eyes test), the Walk and Turn test (WAT) and the One Leg Stand test (OLS). Many departments in the area now use these tests.
The 2007 study analyzed 350 videotaped encounters of police officers administering SFSTs to suspected drunk drivers. The results are shocking. The HGN test was properly administered 7% of the time. The WAT test was properly administered 19% of the time. The OLS was properly administered 50% of the time. What is even worse than these results is the correct percentage when looking at the battery of tests given in each of the 350 encounters (and remember, the idea of SFSTs is that these three specific tests are to be given together). The battery of tests was properly administered only 3% of the time. That is not a typo.
These tests simply do not predict with any semblence of accuracy whether a person is intoxicated. For a police officer, administering them in a controlled, classroom setting is not quite like administering them at 3:00 a.m. in a dimly lit area when it's 20 degrees out and you're exhausted from being in court all day.
That's a great study. It brings to mind a couple ideas:
- I wonder what the hit rate would have been on 21 people that
were intoxicated? Probably higher than 50%, but still 50% is too high for false positives.
- Maybe the people that failed when sober, shouldn't be driving at all!!! Did you know OVER 50% of car accidents are caused by sober drivers... just sayin'...
Those are some really scary statistics. I see many threads on here about keeping Ones mouth shut and offering as little as possible about a self defense shooting until One can lawyer up. I do not see that happening with this thread as most are remaining silent. Is submitting to an FST or specimen (voluntarily) akin to testifying against Oneself? Very similar to volunteering to much info at the scene of a self defense shooting.
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 4:26 pm
by Cobra Medic
ScottDLS wrote:It's kind of disappointing that CHL instructors keep putting bad information out there.
Good instructors give good information. Bad instructors give bad information.
The problem is new students don't have a good way to separate the wheat from the chaff, until after they pay and sit through the class. Even then, they may not know they got bad information, like the Burger King commercial where they travel to Third World villages to find people who like the Whopper. To make things worse, students who have a bad instructor are discouraged from naming names on this forum and others. That protects the bad instructors, like the blue wall of silence.
Because of bad instructors, I tell people to download the # 16 document from DPS to learn the rules, and then take a low cost class for a low cost reciprocal license. Like the commercial says, why pay more for less?
Re: Carrying while Intoxicated
Posted: Thu Oct 14, 2010 5:33 pm
by Cobra Medic
psijac wrote:Driving on public roads is also a privilege not a right
That argument would be more believable if the public roads weren't built and maintained with tax dollars.