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Oldgringo wrote:

AFCop wrote:

ScottDLS wrote:My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

and well said!

What's the problem? You're only talking about a few dollars and a little of your time to establish your sobriety and prove that the arresting LEO is wrong. Go for it!

Or I could never leave the house for fear of arrest for something that isn't illegal. After all, carrying with a CHL is only a Defense to Prosecution for UCW (46.02).

At least 46.035(d) has to be proven beyond a reasonable doubt by the prosecution.

Hi Gigag -

You are correct. I missed that the elements of the offense for PI are different than for DWI and PC 46.035... CWI? PI adds the additional element that the person must have been a danger to himself and others.

My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

There are a number of conditions under which you are statistically more dangerous driving than someone who has had one drink. Tired, talking on the phone, tuning the radio, arguing with the kids... We don't have a 20 year sentence for those activities.

I don't drive or carry when I'm intoxicated becasue it's illegal. Actually, I don't get intoxicated...but I do drink alcohol on occasion. If one drink made the average person intoxicated then it would be illegal to sell any drinks for on-site consumption anywhere.That's because public intoxication is illegal, and the standard for PI is the same as for driving and carrying under CHL.

KD5NRH wrote:

AFCop wrote:Actually the 0.08 is not an absolute on you being "legally" impaired.... You are violating the law simply becuase your BAC is 0.08 or above. Your BAC over 0.08 is prima facie evidence (presumed) you are intoxicated. Kinda like the basic and absolute speed law...

Hmm...has anyone ever even come close to successfully rebutting that presumption? Something like showing up to court with a bottle, drinking to .15, and beating Kasparov at chess while juggling razor blades and reciting poetry, maybe?

0.08 is not rebuttable evidence that you are intoxicated. It is the legal definition of intoxicated. So if you are (0.08), you are (intoxicated).

I've posted this before, but I'll say it again. The legal definition of intoxicated is the same under the CHL law (46.035) as it is under the DWI law. So I'd recommend not driving your car if you've had "too many" to carry (under your CHL). The standard for conviction is the same for both. It is not as some contend... 0.01 or "what the cop thinks", it's the standard set out in PC 49.01. It is up to the prosecution to prove you are intoxicated under this standard, not up to you to prove you weren't.

That said, you should never carry under your CHL while intoxicated becasue it is against the law. However, I'm always surprised by the overwhelming majority of self-described teetotalers that break out whenever CHL and a drink comes up. You'd think this was the Women's Christian Temperance League (WCTL?) Forum....

It is legal to carry (under CHL) if you are not intoxicated and it is legal to drive if you are not intoxicated. In fact, it's technically legal (though not a good idea) to carry in your home even if you are intoxicated.