Alcohol & your CHL

[Keith B]

I arrested an individual for DWI one night who blew a .43 (yes, no typo). He should have been comatose, but was actually functioning fairly well. I had arrested others who were at .15 who were not functioning nearly as well. The person was a seasoned alcoholic and when he was at .25 he would appear to be sober because he had adapted to the level of alcohol in his system, even though you could smell it on him.

Curious - how'd you know he was a seasoned alcoholic? My understanding is that a recent drink can make you blow off-the charts, but I don't know how it works in reality...

History of the individual. I was not familiar with him, but other officers, including the desk Sargent were and advised me after I brought him in to the station for the breathalyzer. Apparently he could be at .25 and drive and would do a good job. He was also pretty smart about his routes and would take back streets back home if he was out drinking and would not be seen driving.

And you wait for at least 20 minutes after their last drink, smoking or food, before the breathalyzer is administered to ensure accuracy of the test.

[hillfighter]

It's less excusable to be drinking alcohol.

That's your personal prejudice, not the law. If someone is below the bright line BAC, then the law says intoxicated is intoxicated, no matter what mind or body altering substances caused it.

[srothstein]

the PC 49.01(2)statute states...

(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.
---
B is easy, cut and dried, quantitative, razor sharp. You have either .08 or you don't. A is more of an issue but also easy, cut and dried, quantitative, razor sharp. You either have the NORMAL use of mental or physical faculties or you don't. And that is all the prosecutor has to prove. Normal is normal. ANYTHING less than normal as presented to a judge or jury meets the definition.

Tex, I agree on your personal rule of no alcohol when carrying, but I am not quite as agreeable on your portrayal of part A as cut and dried or quantitative. As evidence against it, I will ask you to define what is normal. For further evidence, I will ask if it means normal for me or normal for you or who it means normal for. I know people who can solve quadratic equations in their head as a normal thing, but I can't do it stone cold sober. I know what I can do normally, and some people can do better than me drunk and some cannot do it sober.

On the plus side, there are tests police can use to help prove a lack of normal mental capabilities. They are the standardized field sobriety tests - the one leg stand, the walk and turn, and the horizontal gaze nystagmus test. But even they are not 100% (92% accuracy if I recall correctly). Each has a set of standard clues that help the officer make up his mind. The problem with these tests is that I do not know of any officer who gives them for a public intoxication or carrying while intoxicated. They teach them for DWI cases and generally let officers use their own judgment on PI cases.

[srothstein]

Curious - how'd you know he was a seasoned alcoholic? My understanding is that a recent drink can make you blow off-the charts, but I don't know how it works in reality...

While a recent drink can make the test wrong, it is pretty hard to really get away with. One of the standards officers use is making sure that the suspect has nothing in his mouth for 15 minutes before taking the test.

[Charlies.Contingency]

Curious - how'd you know he was a seasoned alcoholic? My understanding is that a recent drink can make you blow off-the charts, but I don't know how it works in reality...

While a recent drink can make the test wrong, it is pretty hard to really get away with. One of the standards officers use is making sure that the suspect has nothing in his mouth for 15 minutes before taking the test.

There is a standard to have a controlled waiting period of fifteen minutes before blowing. And if it's a breathalyzer at the jail they're doing the official test on, then some people get long periods of time before they test. I've seen some complicated cases involving DWI take 1 1/2 before they were able to test, and they still failed. So add time to get to the jailhouse, + 15m waiting on camera and answering questions before you test. Handheld unit's are something I've never played with though.