No drunk left behind?

[Fangs]

So last weekend my friend and I went drinking...

I realize this is generally frowned upon, but keep in mind that I didn't start drinking 'til I was 21 and I'm 22 now, with a 6 month break last year after cutting some tendons in my foot and not wanting to jeopardize the recovery process. So it's still kinda new and interesting for me. I don't mix drinking with driving or guns.

Anyway, my best friend started off his night with some Everclear and ended up pretty wasted pretty quickly. We went bar hopping on the Square here in San Marcos and then ended up at a party at another friend's apartment. He opted for passing out in my car, and I left him there with the window open in case he felt like throwing up (which he did feel like doing, but couldn't at the time, hehe). Since I was planning on spending the night there, I started drinking at the party.

Then he called me and all I could make out were the words "Cops" and "your car".

A quick trip to my car, and come to find out that 2 police cruisers were parked behind me. I walked up and the conversation went like this:

Me: Hi, is everything ok?
SMPD: Is this your car?
Me: Yes sir.
SMPD: Is this your friend?
Me: Yes sir.
SMPD: Well you can either take him up to your apartment or he can sleep across the street there (pointing at Hays County Jail).
Me: Oh no, wouldn't want to let that happen, I'll take him up the to apartment.
SMPD: You live here?
Me: No sir, but I'm staying with my friend tonight.
SMPD: Ok, well then you need to secure your vehicle for your own safety.
Me: Yes sir, thanks, have a nice night.
SMPD: Uh, you too.

My first thought was to ask the officer what he'd be arresting my friend for, but i figured it'd be best to just act grateful and politely end the encounter. I'd had maybe 2 cups of beer at this point, but I didn't want to risk anything. I'm of the firm belief that mouthing off to a LEO is a great way to go to jail. It didn't help that when they woke up my friend he apparently said something along the lines of "Eat dirt and die" to the officer. I am curious though, what would they have arrested my friend for? I'd assume PI, but he was seatbelted in my car. Idk, just curious if someone could shed some light on this.

[seamusTX]

Yep. It's illegal to be intoxicated anywhere but your home or other private property that is not open to the public, such as your hotel room.

Those cops were very forgiving.

- Jim

[Oldgringo]

seamus wrote:

Those cops were very forgiving.

Yes they were. One peep out of you could have resulted in the arrest of the drunk and you and the impoundment of your car. After your one call to your home/providers, you could spend the night in the drunk tank with some really nice people who enjoy the company of pretty "rich" college kids. The next day, you'd get to meet a judge and tell him/her how you'd been wronged and demand that justice be done...while standing.

PS:

My mother hung up on me 50 some years ago when I called her from the Nashville 'pokey'. Maybe your parents love you more than mine loved me? I've never received as much as a traffic ticket since then but then again, I was a quick study.

[seamusTX]

I ran into some cops like that 30-some years ago.

A friend of mine lived with his grandmother who would not tolerate drinking in the house and was not generally the most pleasant company, God rest her soul. I came to visit him with a cold six-pack and we sat in my car across the street from his house. A nosy neighbor across the street called the cops. (We could see her peeking through the blinds.)

The cops checked our IDs (we were legal), and made us dump the open beers down the drain.

Even back then, drinking in a motor vehicle on a public street was an offense.

- Jim

[WildBill]

So last weekend my friend and I went drinking...

I am curious though, what would they have arrested my friend for? I'd assume PI, but he was seatbelted in my car. Idk, just curious if someone could shed some light on this.

As seamusTX said ... "Those cops were very forgiving."

If there was a key in the ignition "your best friend" could have been arrested for DUI and they could have impounded your car. If you hadn't been so cordial, they could have arrested you for PI as well. If your firearm was in your glove box who knows what the charges could have been.

[Fangs]

Well, this thread has made me appreciate the situation's outcome a lot more than before. I thought it was funny at the time, but I didn't realize just how close we were to some serious issues.

The key was in my pocket. The firearm I left locked in the trunk, though I doubt that would have helped much if my car was impounded. (I hear they inventory everything in that case.)

At least now I know.

Oh, and I'd like to clarify something. When I wrote this: "My first thought was to ask the officer what he'd be arresting my friend for, but i figured it'd be best to just act grateful and politely end the encounter" I meant I would have waited until they were done with us and then respectfully asked what it was that they would have arrested him for. It in no way crossed my mind to be rude / disrespectful about it, but I still decided on just getting my friend out of there, since he wasn't sobered up at all yet.

I actually talked to him about it today and he admitted that his recent increase in drinking might be an indirect result of his financial woes, and that it wasn't really the right way to go about fixing them. Sounds like a step in the right direction.

[bryang]

I am glad that everything turned out okay and no one was arrested. You are right about being respectful and not be rude when talking with any LEO the situation will usually turn out for the good. We must give respect before we can expect to receive it.

I am glad, also, that your buddy has seen that drinking was not the answer to solve his problems.

-geo

[WildBill]

Well, this thread has made me appreciate the situation's outcome a lot more than before. I thought it was funny at the time, but I didn't realize just how close we were to some serious issues.

I would love to be 21 again, knowing what I know now. At least, I think I would.

[tfrazier]

Unless things have changed, I don't believe a key in the ignition is sufficient for a 10-55. Officer actually has to see the actor in control of the vehicle. That means behind the wheel, vehicle moving or capable of moving. So, engine doesn't necessarily have to be running (could be steering it down a hill or coasting) but passed out across the seat in a stationary vehicle with just a key in the ignition probably wouldn't fly for anything above PI.

I managed to make one stick with a guy who passed out at a traffic light because he had his foot on the brake and it was in gear with the engine running...ergo, he was in control of the vehicle even though he was passed out drunk. The second I knocked on his window he woke with a start and took his foot off the brake pedal. DWI.

I'd welcome a current LEO to set me straight if I'm wrong.

[seamusTX]

Even if the person eventually gets the charges dropped or is found not guilty, it's going to cost a couple grand.

- Jim

[WildBill]

I'd welcome a current LEO to set me straight if I'm wrong.

I would also like to hear from an opinion from an LEO.

I am not an LEO or an attorney, but there is case law that "operating a motor vehicle" doesn't mean having control of the vehicle, nor does it have to be in motion, nor immediately capable of moving [ie. brake off, engine running.]

It may be a wrong assumption, but since the "best friend" had his seatbelt on, I am presuming that he was in the driver's seat. That could indicate to an LEO that he was operating the car. Also, my OP stated that he "could have been" arrested. Whether it sticks or not is up to the DA or the court.

[Keith B]

In Texas, to be guilty of DWI, the law states you must "operate a motor vehicle in a public place" while "intoxicated." Operation of the vehicle (actual behind-the-wheel driving) is clear when the person is stopped by the police for a traffic offense, but in other situations driving is less clear, as in this case where he was found sleeping in a car. Highways, roads, and streets are "public places," but other areas may not be. I think they could push the operation part, but sitting in a parking lot of an apartment complex is probably not going to hold vodka.. uh, water with the prosecutor or judge/jury.

He can be arrested for public intoxication through, so I am sure that is what they were going to push.


Reminds me of a funny case in Missouri. I was on 10-81 (dinner break for those of you not 10-code savvy ) at about 2:30 in the morning in a little 24 hour truck-stop diner (actually owned by my Uncle). One of the Missouri State Highway Patrol troopers who was a regular there came in with his uniform just covered in mud. I had him sit down and join me just to hear what had happened.

The story went that he had observed a pickup truck weaving a little on the highway around midnight, so he decided to pull it over on suspicion of DWI. He was behind the truck writing down the license number with the spotlight shining into the back window. As he started to move from behind the truck to approach the drivers window, he observed the driver and the passenger switching places.

Just as the passenger got into the drivers seat, the truck spun its tires and slung mud all over the trooper who was standing directly behind the left rear wheel by that time. The truck moved forward and then abruptly stopped. The trooper ran up to the drivers door, opened it and yanked the keys out of the ignition. The person now behind the wheel was a 70 year old man and the passenger was a 10 year old boy.

The trooper got him out of the truck and started questioning the man. His story was knew he was too drunk to drive, so was letting the Grandson drive him home. When they got stopped, he thought it better (in his inebriated condition) if he was behind the wheel since the kid didn't have a license. The trooper advised he was arresting him on suspicion of DWI. The Grandpa then decided it would be better to let the kid take the rap for driving without a license. Grandpa said 'But I wasn't driving, the kid was.' The trooper told him, "Well, he was when I stopped you, but just now you operated the motor vehicle by driving it 4 feet. " Grandpa went to jail via dropping the Grandson off a mile down the road at Grandma's house.

After hearing that story and realizing the rough night the trooper had, I decided the only decent thing to do was buy him breakfast. He stated "You don't need to do that." I told him "Save your money and we'll go to the car wash after breakfast, cause your wife ain't gonna let you in the house looking like that!!"

[seamusTX]

I know of a case where a guy was changing a flat tire on the side of the road. Cop rolled up and asked him if he needed help, smelled alcohol on his breath, and arrested him. Suspect blew over the legal limit (IIRC it was 0.1 at the time), charged with DWI. He was acquitted at a bench trial; but as I said earlier, it cost him a couple grand in bail and legal fees and suspension of his license from the arrest through the trial.

If he was married, it might have cost him something else.

- Jim

[kd5zex]

This weekend I was having a discussion on Public Intoxication with a LEO buddy of mine and I decided to do some research. It seems that in 2007 SB 904 changed the language of 49.02.

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.

(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.

(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(d) An offense under this section is not a lesser included offense under Section 49.04.

(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Just thought I would bring it up to the group for the sake of completeness and/or discussion.

I am going to play devil's advocate and say that the guy could not have been convicted under 49.02. There may be some ordinance that I do not know about however, for example here in New Braunfels we have an ordinance which regulates the size of your ice chest.