TexasCHLforum.com

"....So, unless the police officer documented the soldier "not having the normal use of mental or physical faculties" or "having an alcohol concentration of 0.08 or more" in the original report, then the simple admission by the soldier that he had shared some wine with his wife is not (or should not be) an issue. Nor should the mere smell of alcohol on his breath. Especially if not documented.

And let's face it, if the charges were true, then they would have been added during the arrest, not several weeks later."


I think many officers and CHL holders are being taught it is a zero tolerance. Even if the officer documented the guy as "not having the normal use of mental or physical faculties", then it is still a subjective opinion of the arresting officer and/or open to just plain lying on the report. Yeah, we can all agree a person stumbling drunk is impaired, but someone with say one drink may be or may not be affected. The law should demand some kind of evidence of impairment besides a simple opinion of one officer who may or may not have an ax to grind. The law should require a blood test, a FST in front of cameras, video with sound recording the person's appearance, speech, etc. Something that backs up an opinion no one else can later see evidence of. I support and admire our LEO's so this is not intended as any slight to the profession, but there are a few who are not beyond abusing power. This is why it is just a lot simpler to advise people to not drink at all and carry. It avoids the entire problem, but that is not exactly what the letter of the law requires.

Thank you for clarifying the route a case must take to be considered as case law. That does clear things up a bit. In our instructor's class it was impressed on us that you are intoxicated if an officer says you are. Normally anyone with common sense would base this on impairment that is fairly easily discerned through the usual symptoms, failing a FST, blood alcohol, etc and not just a smell of alcohol. As I understand this case, the concern is an arrest took place for something that was not illegal (carrying in a hospital that was not posted) and when the guy declined to accept a plea of guilty, then the alcohol charge was suddenly tacked on. Was he or wasn't he intoxicated at the time of the arrest? If there is only the officer's observation of the smell of alcohol on his breath and no supporting evidence of impairment was even sought (breath test, blood test, or even a field sobriety test on camera) then it should be wrong to be able to add the charge later. Am I reading this entire story incorrectly? My point isn't whether or not a conviction can be reached on such shaky ground (unless there is much we have not been informed of), but the law should protect a citizen from having to go through the expense and trouble to defend himself when there was no supportive evidence even sought by the arresting officer at the time. The same officer allowed the guy to drive a car, correct? Unless there is a lot of misinformation or misunderstanding going on, this does not seem right.

As it stands now, the only way a person can be absolutely sure a beer had at noon will not get him in trouble going out that evening is just to not carry. If the mere smell of alcohol on one's body is enough to be determined "intoxicated" then abstinence is really the only plan (and no hugging of drunk people). The law does not say that, but it essentially amounts to it in practice if you want to be certain to stay out of trouble. There should be something to back up the charge besides just a smell reported by one officer. A field sobriety test in front of camera's, blood test, breath test, etc. I don't care if they make the blood alcohol benchmark lower than driving a car so long as there is something more concrete. It would reduce the temptation for abuse.

My personal decision is zero tolerance for myself and I strongly recommend that, but I don't like the idea someone can have just the smell of alcohol and nothing else. It opens the door to abuse of power. Anyone could simply "say" a CHL holder smelled of alcohol. A blood sample sure would have helped in this case. As has been said, we need the law clarified for the sake of what we tell our students. If the guy was intoxicated, I am the first one to say he was clearly in the wrong. Period. But it does not appear that is the case so far. This is shaping up to be case law one way or the other.

If this went down as described, we need to do what we can to assist. If we don't support a CHL holder to make his/her case in court when stuff like this happens, then cases can be lost creating the unfavorable case law we all want to avoid. Looking forward to seeing a fund set up or his defense.