KD5NRH wrote:Mithras61 wrote:This concerns me. The CHL laws don't specify a BAL for intoxication, so as I understand it, a breathalyzer is not required. He could easily be convicted if the officer felt he was impaired even though he was legal to drive.
This is one that I've wondered about; if I go to a bar or restaurant, (leaving the gun in the car, of course) and have a beer or two, wait a couple hours, and head home, how hard would it be for a cop to say I was too intoxicated to carry but not DUI? If he didn't offer or require a breathalyzer or blood test, I could see a jury smelling a rat when he claims I was visibly intoxicated enough to arrest while driving, but not enough to go through the DUI procedures.
In your specific circumstances, I can see how a jury could smell a rat, but the original post was that the accused was approached in a parking lot, and the charge is not DUI, but PI. The law on PI is:
49.02 Public Intoxication
"Public Intoxication" means:
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.
"Intoxicated" is defined as:
A. not having the normal use of mental or physical faculties by reason of the introduction of alcohol, 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.
If the offense is claimed under 49.02(A), then a breathalyzer wouldn't be required, and it appears that if the LEO observed activity that indicated to the LEO that the accused was intoxicated (such as sipping on a beer), then the arrest can be made without any further investigation.