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There is one common mistake being made in this thread that might be important when talking with the attorney. While we all would like to see the original police report and what it says, there is no law or rule requiring that every thing that might possibly charged should be written in the original report. Supplemental reports are written all of the time. The original report needs to have enough facts to show probable cause for any charges filed AT THE TIME. It also needs to have enough information to jog the officer's memory so he will remember the rest of the facts when he testifies. But officers also use notebooks for additional memory devices, as well as their own memory.

What is important is the actual charging documents. They must allege enough facts to meet the elements of any charge filed. This does not have to be in the original report and may be from supplemental reports. The DA must, under the rules of discovery, provide all of his evidence to the defense attorney, some of which is kept confidential (by law). This would include the secondary reports, investigatory reports, etc.

As an aside, the original police report is public information except for certain parts. I believe the only part that is confidential by law is the suspect information, and that is only until charges are filed. I could be wrong on this since open records is a separate specialty area of the law that I have some familiarity with but not enough. But if you get the police case number and the agency, anyone can get a copy of the report by filing an open records request. In most cases, police agencies will have a minor charge for this if you are not a party to the report.

alphonso wrote:Does anyone know (or care to hazard a guess) why the rule for drinking and carrying was not as precisely spelled out as the drinking and driving rules?

Actually, the definition is carefully spelled out, but you have to understand the way the law works, including other codes.

In this case, the Code Construction Act, which is now part of the Government Code (chapter 311), tells us what to do. In section 311.011, the instruction is to use the common meaning of a word unless it has acquired a technical meaning, by legislative action or otherwise.

So, if intoxication is not defined, we take the common meaning. I am confident that the common meaning of this word is the meaning as defined in Chapter 49. Most people will use other words to indicate various degrees of intoxication, such as buzzed, drunk, smashed, three sheets to the wind, etc. and we would all understand them to mean drunk, as in really drunk. By the same token, most people use the word intoxicated solely in reference to "legally intoxicated" and are referring to DWI when they do use the term. So, the common usage is now a very technical usage as indicated by Chapter 49.

In addition, there are court rulings that say that if the term is not defined in the specific section, look in the chapter, then the subtitle, then the title, then the code, then other codes for a definition. The courts would accept a definition of intoxicated from the Alcoholic Beverage Code if there was none in the Penal Code. The problem is that there are actually a couple of different definitions of intoxicated in the Penal Code. There is even one in Chapter 46. In Section 46.06 the law says that intoxicated means a substantial impairment of the person's faculties. This is even higher than the definition in Chapter 49. So, normally, the court would use the substantial impairment definition.

It is my belief that the courts would look at the way intoxicated is used by the public to refer to DWI standards and would then apply that standard to carrying while intoxicated. A good defense attorney would argue for the higher standard of substantial impairment if he thought the prosecution would not be able to prove it. But, he might agree to use the Chapter 49 definition and then argue for no BAC reading, depending on the specifics of the case.

This will be important to us as the case law does get settled further. And there may be other case law out there already that I am not aware of. I will caution everyone to remember that this case will not necessarily make precedent for us. A District Court ruling is not binding as case law though it can be used to argue for a specific meaning. It takes an appellate court to make precedent, and then it is only binding in that circuit. To get a statewide definition that is somewhat binding takes either the Court of Criminal Appeals or the state Supreme Court. This is ignoring the district court making an appellate review of a county court decision, of course.

It will be the Bell County Courts-at-law, but I don't know which one. If they manage to get one of the charges up to a felony, it could be any of several district courts that cover that county.