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How is everyone handing this topic in class now this it's in print on the new chl-16 ?

Neverpanic1 wrote:How is everyone handing this topic in class now this it's in print on the new chl-16 ?

The way we always handled it. TPC 49.01 has always been the standard for CHL (or DWI). So, I tell students while it is technically legal to drink alcohol and carry (or drive), it may not be the smartest thing do do, even if only in small amounts. You cannot be intoxicated as defined by the guidelines in TPC 49.01. And, since section 2(A) says:

(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

it is up to the officers discretion on interpretation and determining if they feel you are impaired. The officer may have one 'impaired' standard for driving, and another for carrying, or it may be the same. No matter, there are many varying physiological factors that play into causing impairment of a person. If you are carrying and have alcohol on your breath, then that is one factor the officer will take into consideration. Remove the presence of any alcohol and the officer has no grounds to try and factor that into the impairment evaluation.

As for the .08 BAC, I tell students that the officer does NOT have to give you a breathalyser for carrying (or driving), but if they do and you blow .08 or greater, then it is the de facto standard and proof that you were intoxicated and you are toast.

Which is why, as a lawyer, I always advise people to NEVER blow unless you have had absolutely nothing to drink all day.

RossA wrote:Which is why, as a lawyer, I always advise people to NEVER blow unless you have had absolutely nothing to drink all day.

However, with mandatory blood draw being used these days you may still get a BAC level charge placed against you. Not sure it's ever been used to prove a charge of carrying while intoxicated, but Lots of controversy over that due to the discrepancy in the statutes. However, it has been upheld in the Texas higher courts for sure on DWI cases.

I will withhold any judgment on that issue as it is not really for discussion here unless related to a UCW charge.

I was foreman on a petit jury in a DUI case. I can tell you that the law, as written, is not easy to interpret. How am I, as a juror who is a complete stranger to you, supposed to know what the normal use of your faculties is? There's plenty of grey area there for a citizen deciding another citizen's fate.

In the end, our case came down to the defendant having driven her car back to where the three of them had met so that they could all drive home. The other two were clearly intoxicated, so we interpreted that as the defendant having lost the normal use of her faculties. (If she was sober, she may still have been foolish enough to allow her friends to drive in their inebriated condition, but since she failed the eye nystagmus test and the walking the line test and was pulled over for erratic driving, taking her friends back to their cars was the coup de grace to her case.)

"Normal" is a relative term. My dad had a one eyed aquaintance that would drink beer all day every day. First beer would be within a few minutes of getting up. He never "appeared" drunk or intoxicated until he took a dip of Copenhagen. Then he would stumble and stagger like he'd been drinking all day. It was the strangest thing. He also kept a derringer in his pocket at all times. This was long before CHL in Texas. One heck of a welder too.

Just not worth the risk of getting caught our having an accident.

Some people, including some very close to me, have slight speech impediments which police interpret as "slurred speech", one of the classic signs of intoxication.
Some people have a slight limp or otherwise 'walk funny." Police interpret this as "unsteady gait", another classic sign of intoxication.
The bottom line is that if I have had one beer and the officer smells it, he can use other totally inappropriate indicators to testify about how I have lost the normal use of my faculties.

RossA wrote:Some people, including some very close to me, have slight speech impediments which police interpret as "slurred speech", one of the classic signs of intoxication.
Some people have a slight limp or otherwise 'walk funny." Police interpret this as "unsteady gait", another classic sign of intoxication.
The bottom line is that if I have had one beer and the officer smells it, he can use other totally inappropriate indicators to testify about how I have lost the normal use of my faculties.

You are correct. I know personally of a case where they occurred. My brother has MS and his when he walks is sometimes affected. He was leaving a concert several years ago and had a total of 2 beers the whole evening, one early and the second about an hour later approximately 45 minutes before the concert ended. He ran through a DWI checkpoint on the way home and was subjected to a FST. His BAC level was .03%, but because of the smell of beer and his gate being affected he was charged with DWI. He was able to get the charge dropped because of a doctor's letter advising how the MS affected his walking. But, it cost him about $1500 in legal fees to get that far.

Bottom line, if you remove the alcohol factor from the equation it is much harder for them to find probable cause to run you thorough an FST and much harder to prove any sort of impairment.