Carrying while Intoxicated

[pt145ss]

This week I had the pleasure of serving on a jury for a DWI charge. Although this has no relevance on what I am about to ask, there was a high probability that the defendant was "intoxicated", but the state failed to prove "beyond a reasonable doubt" that the defendant was intoxicated. Had we been asked to look at it from a preponderance of the evidence standard, the outcome might have been different. The state's evidence was largely the patrol car video and the testimony of the arresting officer. The main part of the video has to do with standard field sobriety tests...and in this case the environment in which the tests were administrated and how they were administered play a key role in finding the guy not guilty (poorly administered and in a poor environment giving rise to reasonable doubt). I walked away from this with the impression that it is not in One's best interest (guilty or not) to voluntarily submit to FST's nor submit to giving a breath or blood specimen.

Which brings me to my question(s). As CHL holder we are subject to the same standard of intoxication as one would be in a DWI case (at least as far as I can tell in code). This is what I think I know (I could be wrong).
**There is not a law, case law, or any other means to compel One to submit to FST's and they are completely voluntary.
**An officer cannot use refusal of FST alone for probable cause but can consider it as part of the totality of the situation to bolster probable cause. Also, FSTs are not needed to prove probable cause.
**FSTs, when properly administered in ideal situations, are only 85% effective in determining if someone is either physically and mentally impaired due to the introduction of alcohol or drugs.
Imagine a scenario not involving a motor vehicle and/or etc. In which an officer has made contact and has reasonable suspicion that One is carrying while intoxicated. Is it reasonable to assume that the officer would follow similar investigative protocols and ask the suspect to submit to FSTs? I guess I'm asking what would be standard or normal protocol for the investigating officer. If FSTs are the protocol, Why in the world would anyone voluntarily submit to it knowing that it can and will be used against you. As a CHL holder, is there any means by which to compel One to submit to FSTs?

Blood and Breath, what I think I know:
**An officer cannot compel a suspect to provide a Blood or Breath specimen unless the charge includes serious bodily injury and/or death. Granted in a DWI charge, refusal is an automatic suspension of a driver's license for no less than 180 days according to IMPLIED CONSENT.

**Again, refusal by itself cannot be the sole grounds for probable cause but can be considered in the totality of the situation.

Can they suspend One's driver's license, even if the charge has nothing to do with a motor vehicle (I'm inclined to say yes)? And if so, how, if at all does this affect CHL status (I assume if charges are filed, CHL will be suspended until resolved). What if One refuses to provide a specimen, but charges are dropped by DA several days later. The driver's license is still suspended for the refusal.

So, Is it better to refuse FST and Specimen, knowing it will most likely give rise to (at least bolster) probable cause? Possible benefit is it gives a DA less ammunition (no pun intended) to use against you. Or is it better to submit FSTs and specimen in hopes of proving to the officer that you are not impaired? Possible benefit is that the officer releases you before going further. On the other hand, the officer most likely already believes he has probable cause, and only wants the FSTs and Specimen to bolster the case for the DA. Given that most "clues" on a FST is subjective to the officer, any misstep/misunderstanding, no matter how slight (e.g. not hearing and asking the officer to repeat instructions due to a loud truck driving by or something), can be perceived in a negative light.

[OldCannon]

Blood and Breath, what I think I know:
**An officer cannot compel a suspect to provide a Blood or Breath specimen unless the charge includes serious bodily injury and/or death. Granted in a DWI charge, refusal is an automatic suspension of a driver's license for no less than 180 days according to IMPLIED CONSENT.

If I understand, the city of Austin has compulsive blood tests that are administered at the scene on certain holidays (July 4, Jan 1, etc.). They have a judge on notice who rubber stamps the warrant and a nurse that does a supervised draw - you may not refuse the draw.

http://www.kvue.com/news/Austin-Police- ... 49469.html" onclick="window.open(this.href);return false;

[Ameer]

It depends. I think if you're sober and the officer is honest, the FST can help you.

[psijac]

http://www.totaldui.com/blog/houston-ma ... texas-dui/" onclick="window.open(this.href);return false;

I don't believe people should have the liberty to refuse breathalyzer test.

[SlickTX]

http://www.totaldui.com/blog/houston-ma ... texas-dui/

I don't believe people should have the liberty to refuse breathalyzer test.

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.

[i8godzilla]

http://www.totaldui.com/blog/houston-ma ... texas-dui/

I don't believe people should have the liberty to refuse breathalyzer test.

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.

Or the 5th..........

[RPB]

"Can they suspend One's driver's license, even if the charge has nothing to do with a motor vehicle (I'm inclined to say yes)?"

http://www.statutes.legis.state.tx.us/D ... TN.524.htm" onclick="window.open(this.href);return false;
CHAPTER 524. ADMINISTRATIVE SUSPENSION OF DRIVER'S LICENSE FOR FAILURE TO PASS TEST FOR INTOXICATION
(B) a refusal to submit to the taking of a breath or blood specimen following an arrest for an offense prohibiting the operation of a motor vehicle or an offense prohibiting the operation of a watercraft, if the watercraft was powered with an engine having a manufacturer's rating of 50 horsepower or more, while:

(i) intoxicated;

(ii) under the influence of alcohol; or

(iii) under the influence of a controlled substance; or.........

So,

Texas Penal Code - Section 49.06. Boating While Intoxicated., can cost you a driver's license (suspension, at least) if it's over a 50 horsepower motor I think.

[pt145ss]

"Can they suspend One's driver's license, even if the charge has nothing to do with a motor vehicle (I'm inclined to say yes)?"

Texas Penal Code - Section 49.06. Boating While Intoxicated., can cost you a driver's license if it's over a 50 horsepower motor I think.

ok...say you refuse...your taken to jail, booked, and charged. lets say 10 days later the DA decides to drop charges do to lack of evidence...after all...you just refused FST and specimen. Your license to drive is revocked via IMPLIED CONSENT for 180 days. what is the status of your CHL?

[Ameer]

Your license to drive is revocked via IMPLIED CONSENT for 180 days. what is the status of your CHL?

I think you have to get a Texas ID so you can display that with your CHL if cops ask for ID when you're carrying.

[HankB]

I don't believe drunks ought to carry guns any more than they ought to drive.

But if no motor vehicle is involved I see no upside to taking an FST, breathalyzer, or anything else if you've had a drink or two; no law requires it. (Hopefully it's not five . . . or six . . . or more drinks. )

IANAL, but it's my understanding that LEOs can cite for "public intoxication" if you're so drunk that you pose a danger to yourself or others - no motor vehicle need be involved - but the cop IS going to have to articulate in court exactly how he determined you were intoxicated - which may be difficult if there's no supporting video. If you're behaving like a normal person and not staggering or passed out, that will be difficult.

Of course, you may get a bad cop who'll perjure himself to make a collar, but without supporting evidence, you should beat the rap, if not the ride.

[ScottDLS]

"Can they suspend One's driver's license, even if the charge has nothing to do with a motor vehicle (I'm inclined to say yes)?"

Texas Penal Code - Section 49.06. Boating While Intoxicated., can cost you a driver's license if it's over a 50 horsepower motor I think.

ok...say you refuse...your taken to jail, booked, and charged. lets say 10 days later the DA decides to drop charges do to lack of evidence...after all...you just refused FST and specimen. Your license to drive is revocked via IMPLIED CONSENT for 180 days. what is the status of your CHL?

Your CHL would be suspended for the 10 days that you were charged and then you would get it back when the charges are dismissed. You'd then go get a TX ID Card to show as identification w/ your CHL while your DL was suspended.

[CC Italian]

This is one more reason why I never ever drink and drive with or without carrying concealed. If I am going to drink out in public the gun goes in the safe and my better half drives. If she drinks I drive. One of us is always totally sober with not a drop of alcohol in our system. I knew kids in college who blew higher then .08 after just 2 beers. It is not worth the risk to me. At my job I have to notify my boss within 24 hours of an arrest and will lose my job on the spot for a DWI.

[cheezit]

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%

[pt145ss]

This whole thing just got me to thinking. This is not a case where the guy was obviously "fall down" drunk. The DA agreed with this by qualifying this sentiment in both the opening and closing statement. The DA played the dvd and would stop it in certain places so the trooper could tell us what he noticed at that point in the dvd e.g. swaying. And in each instance, the DA and Trooper made it a point to say something to the effect of the swaying (or whatever it was) is more noticeable in person than on dvd. The fact is, we re-watched everything the DA asked us to during deliberations (in some instances 3 or 4 times) and we could not see enough sway (or whatever) that could not be reasonably explained by something else. We did not see anything exaggerated enough to say…ahhh…that has to be alcohol induced.

I believe the trooper honestly felt the guy was intoxicated. In fact, after the verdict, the DA, Defense lawyer, and trooper interviewed several of us in the hall. At some point, the trooper said in a rather arrogant as matter as fact way, that regardless of the verdict, the guy was intoxicated. Me and my big mouth told him his statement was arrogant considering 6 people just said there was not enough evidence to prove he was intoxicated.

The point being, the entire process seems somewhat subjective and if a trooper has already made up his mind about probable cause, then he can attempt to justify the smallest of things to make a case.

[kahrfreak]

It depends. I think if you're sober and the officer is honest, the FST can help you.

If you believe this, you might also be interested in this lecture that refutes this assertion.