case law for "intoxcated" limit while CC

[steveincowtown]

It seems to be a popular opinion to just say "dont' drink anything" while carrying. The reality is that if the line is drawn with "don't drink a drop", than it seems like we really have to say lock up your guns if you take:

(all of the following cause impairment)

"Anti-anxiety medication
Amphetamines
Barbiturates
Stimulants
Narcotic pain medications
Allergy medicines
Blood sugar medicines
Antidepressants
Tranquilizers
Blood pressure medicines
Motion sickness medication
Ulcer medication
Antibiotics
Anti-seizure medicines
Paregoric
Anti-nausea medicine
Sedatives
Cough syrups
Alcohol-containing medicines
Caffeine-containing medicines
Decongestants "


from http://www.friendsdrivesober.org/alcoho ... iving.html" onclick="window.open(this.href);return false;

[Keith B]

As mentioned before, it all boils down to impairment. If you are deemed 'impaired' and the officer feels it is enough to arrest you for DWI, then you can be taken in. Impairment can be from alcohol, drugs (illegal or legal), medical conditions where you are over or under medicated or not reacting well (diabetic or bipolar, etc.), even lack of sleep or other factors that play together to cause the impairment.

If the officer feels he has reasonable suspicion you are impaired, then he can perform field sobriety tests to see if your reactions and responses are appropriate. At that time, if he feels he has probable cause to arrest you for DWI, then he can. Alcohol doesn't even have to come into play.

Now, the big issue is you are going to have to get a lawyer to try and beat the DWI charge in court. But, as mentioned, they are going to need more evidence than just 'I smelled alcohol on his breath and he was acting strangely." This means BAC or test for intoxicants in the blood stream, etc. Also, many court cases rely on dash-cam video now to help prove that the individual was impaired and had lost use of their faculties. Without hard evidence like this, Judges and Juries will usually let someone walk.

Here is a perfect example of someone who may be a little impaired

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[hirundo82]

If the officer feels he has reasonable suspicion you are impaired, then he can perform field sobriety tests to see if your reactions and responses are appropriate. At that time, if he feels he has probable cause to arrest you for DWI, then he can. Alcohol doesn't even have to come into play.

It's good to also note that you have a 5th Amendment right to refuse to take field sobriety tests, which are notoriously subjective. Unlike refusing to take a breath or blood alcohol test, refusing a field sobriety test is not grounds for revokation of your driver's license.

[aardwolf]

If you want to carry drunk, get a shotgun.

Or a badge. viewtopic.php?f=15&t=35390" onclick="window.open(this.href);return false;

[jecsd1]

I DO NOT want to carry drunk, nor do I carry after ANY alcohol consumption! I was just asking if anyone knew of a court precedent involving this particular statute

[gigag04]

If the officer feels he has reasonable suspicion you are impaired, then he can perform field sobriety tests to see if your reactions and responses are appropriate. At that time, if he feels he has probable cause to arrest you for DWI, then he can. Alcohol doesn't even have to come into play.

It's good to also note that you have a 5th Amendment right to refuse to take field sobriety tests, which are notoriously subjective.

They are definitely not subjective. They are in fact standardized and have been validated by a number of medical and scientific organizations. The majority of contrary claims are initiated by lawyers that specialize in DWI cases. It's a smart advertisement tool that generates business.

[baldeagle]

I guess I'm going to have to explain myself in more depth to get my point across. I was foreman on a jury that found a woman guilty of DUI. She took an eye nystagmus test at the scene and the officer testified that she failed. She refused to take a breathalyzer test. The only evidence presented at trial that she was impaired was a video of her taken at the police station in which she appeared to be unsteady on her feet, the testimony of an officer that she had crossed several lanes of traffic while executing a right turn and the testimony of her two friends (who disagreed completely on the facts) that one of the two of them was passed out in the back seat. (Each claimed it was the other.) We found her guilty of DUI. Why? Because one of her friends was clearly impaired to the point that it would have been impossible for her to drive home safely and the defendant was driving back to the point that they had met so they could each take their car and drive home after having been barhopping all night. A friend who had the normal use of their faculties would never allow another friend who was passed out in the back seat to get into their car and drive home.

So the amount of intoxicant that you have in your system is not relevant. The fact that you appear to be impaired and you do something foolhardy (like shoot someone?) while in that condition is enough to get you convicted. The OP asked for case law regarding impairment and carrying. I can't give you that, but I can tell you from personal experience that you do not have to be falling down drunk to get convicted of DUI. You only have to appear to be slightly impaired and then do something really stupid in that condition.

[srothstein]

There are several points in this thread that need to be looked at carefully. First, and most important, is the original question of intoxication. The Code Construction Act tells how to read any law in Texas. It says that if a word is not specifically defined for the section, then it has the common meaning unless there is a specific legal meaning attached already. Intoxication is not defined for the specific section on carrying, but is defined in both chapters 46 (46.06) and 49 of the Penal Code. The two definitions are not the same. While you could argue for the definition in Chapter 46, since it is weapon related, I think the court would take the definition in chapter 49. I say this because the word intoxicated has come, in common use, to have the specific legal meaning for driving while intoxicated. For almost all other meanings, the common use would say drunk or some similar slang term, not intoxicated.

Chapter 49 has a defined intoxicated as meeting either of two separate conditions. The first is the condition already quoted about loss of use of your faculties. The second is the specific case of having a blood alcohol content of .08 or higher. You are intoxicated if you meet either condition, so in at least one sense, there is a limit for carrying while intoxicated. The second limit is the loss of your faculties, which could be at either side of .08.

You do not have to take field sobriety tests. And yes, some are very subjective (the touch your nose, recite the alphabet, bend over, etc. that are sometimes seen on TV). But almost every officer in the country now uses what is called the Standardized Field Sobriety Tests and these are not subjective at all. There are three tests in this battery, and each has been repeatedly studied and tested in the laboratory. Each has a set probability of predicting true intoxication, meaning .08 BAC. Each has a set procedure for instructions and administering the tests and each has set rules for what counts as a clue of intoxication and how many clues are needed to "fail" the test. And, no matter what you do wrong, if it is not one of the specified clues, it cannot be counted against your performance.

While I have seen people who have problems with the one leg stand or the walk and turn when they are not intoxicated, I have not yet met someone who had problems with the horizontal gaze nystagmus test that way. I do know they can exist, I just have never seen one yet. I am pretty good with the HGN at detecting intoxication, but not nearly as good as some people I know. The officer who trained me in it could usually predict within two points (thousandths) what the breathalyzer would show.

It is correct and important to remember that intoxication does not necessarily mean alcohol. The law defines an intoxicant as ANY substance that can cause impairment. A lot of drugs, even prescription ones taken on a doctor's orders can cause intoxication.

And finally, (because I can't remember anything else I wanted to comment on though I think I missed something I noted when I read it), I want to agree with some of the advice posted. It is probably best if you do not carry after drinking at all or taking any drugs for any reason. But this is just my advice and it is certainly not the law.

[baldeagle]

To answer the OP, I haven't been able to find any stories about licensed carriers being convicted on carrying while intoxicated. Doesn't mean it hasn't happened, just that I didn't find any.

[hirundo82]

If the officer feels he has reasonable suspicion you are impaired, then he can perform field sobriety tests to see if your reactions and responses are appropriate. At that time, if he feels he has probable cause to arrest you for DWI, then he can. Alcohol doesn't even have to come into play.

It's good to also note that you have a 5th Amendment right to refuse to take field sobriety tests, which are notoriously subjective.

They are definitely not subjective. They are in fact standardized and have been validated by a number of medical and scientific organizations. The majority of contrary claims are initiated by lawyers that specialize in DWI cases. It's a smart advertisement tool that generates business.

Do you have data to back that up? Everything I'm finding in the scientific literature (eg this and this and this) is saying that they are unreliable and don't meet the standards of scientific evidence.

This is a common issue in forensics. There is very little science to back up most techniques, with the exception of DNA analysis. There was a damning report from the National Academy of Sciences a few years back that concluded that even fingerprint analysis is poorly supported by science.

[srothstein]

I cannot get all of your data without a sign-on to your library. Using the Texas State library, I did look at the first report (the HGN review by Rubenzer and Stevenson). Recognizing my bias toward the police, I must say I think the article started from an anti-police or anti-SFST point of view. Several of the arguments in it were based on the presumption that the officer would change his scoring of clues on the HGN based on what the portable breathalyzer said. The authors note that the HGN was verified in testing but claim the test was incorrect because it compared HGN results solely to alcohol and not including other possible causes. They also note the SFST battery verification was a field test based on stopping people for poor driving and seeing if the test predicted intoxication properly. They claim this is flawed because of the selection bias of only stopping suspected drunks.

The problems with their claims are that if a cop is going to lie, no test is valid. I don't think it will happen but concede it is possible. The other two claims have flaws in logic that are similar. If I was testing HGN to use it as a diagnostic tool, they would be right. But if I am testing it to see if it predicts alcohol impairment, the tests seem valid to me. They acknowledge that officers are taught that there are other possible causes of HGN, and even of other instability problems for the other tests, but fail to acknowledge that the test has been validated for what the officers are attempting to do.

The test is used to help confirm the officer's prior suspicion that the person is intoxicated based on other factors present - like his driving mistakes. This is the key to the validity of the SFST, in my opinion. It is a factor used in conjunction with many other factors and it is never considered conclusive. It leads to the officer making an opinion based on his observations and training. The opinion may be confirmed later by a breathalyzer, or may not. If the breathalyzer does not confirm, the officer can give his opinion in court and the defendant can give their opinion and the jury can chose who they think is more accurate.

But, since you asked for reports of scientific testing, I thought you deserved more than just my opinion. In addition to advising you to check the article's references (he lists several validation studies), here is an older copy of the SFST instruction manual to read (how the tests are given and the officer's are taught): http://breathtest.wsp.wa.gov/SupportDoc ... 202004.pdf" onclick="window.open(this.href);return false;

And here is the NHTSA page on a report on how to manage training for SFSTs, including some of the verification of the tests:
http://www.nhtsa.gov/People/injury/alco ... uction.htm" onclick="window.open(this.href);return false;

[sjfcontrol]

But, since you asked for reports of scientific testing, I thought you deserved more than just my opinion. In addition to advising you to check the article's references (he lists several validation studies), here is an older copy of the SFST instruction manual to read (how the tests are given and the officer's are taught): http://breathtest.wsp.wa.gov/SupportDoc ... 202004.pdf" onclick="window.open(this.href);return false;

Steve
There's something seriously wrong with the math on page II-17 of the manual.

Consider exactly what a BAC of 0.08 means. blood alcohol concentration is expressed in terms of the "number of grams of alcohol in every 100 milliliters of blood". When we find that a person has a BAC of 0.08, that means that there is one-eighth (0.08) of a gram of alcohol in any given 100 milliliter sample of blood. One-eighth of a gram is equal to one hundred milligrams (a milligram is one-thousandth of a gram). So, at a BAC of 0.08, the person has 100 milligrams of alcohol in every 100 milliliters of blood, or exactly one milligram per milliliter. If a person has a BAC of 0.08 it means there are 0.08 grams of pure ethanol in every 100 milliliter ("percent") of his/her blood.

First: one-eighth is NOT 0.08, it is 0.125
Second: One-eighth of a gram is NOT equal to 100 milligrams, it is equal to 125 milligrams
Third: Which is it? 0.08 = 100 milligrams/100milliliters = 1 milligrams/milliliter -- or --
0.08 = 0.08 grams/100 milliliters = 80 milligrams/100 milliliters = 0.80 milligrams/milliliter

I haven't finished the rest of the report, as I got seriously stumped at the math they'er using. Perhaps they're mixing BAC with BrAC? They're description just looks WRONG.

[Barbi Q]

One of the reasons I support dashcams is the jury can see what the police saw. Both for the driving that lead to the stop and the behavior during the stop. If the driver was swerving all over the road, the jury can see that.

[HankB]

First off, I'll say drunks ought not carry guns any more than drunks should drive cars. But I don't think a beer or two will intoxicate a normal guy. (If anyone can cite a case where a CHL holder was convicted of carrying while intoxicated because he ingested a small amount of alcohol, please do so; I'll revise my opinion to fit established facts.)

. . . If the officer feels he has reasonable suspicion you are impaired, then he can perform field sobriety tests to see if your reactions and responses are appropriate. At that time, if he feels he has probable cause to arrest you for DWI, then he can . . .

AFAIK, while there are laws ("implied consent") in regard to testing of a motorist suspected of DWI, there are no similar laws for testing a CHL suspected of impairment, unless the person also happens to be a motorist. In the absence of field sobriety, breathalyzer, or other results, the officer will have to articulate exactly how he determined intoxication. Falling down drunk, staggering, incoherent speech, or other symptoms of impairment - especially if caught on a dashcam video - would be pretty telling. In the absence of such, proving a case against a defendant with competent counsel would seem to be difficult.

. . . While I have seen people who have problems with the one leg stand or the walk and turn when they are not intoxicated, I have not yet met someone who had problems with the horizontal gaze nystagmus test that way. I do know they can exist, I just have never seen one yet . . .

I remember reading about a case in, IIRC, Houston, where an officer said he did the nystagmus test on a defendent and said it told him the guy was drunk. Defendent said words to the effect of "He waved his pencil in front of my face and told me I was drunk."

Much testimony and cross examination, but somewhere along the line, the defendent removed his glass eye and held it up for all to see, while his lawyer asked the officer "Did THIS eye look drunk to you as well? Do you need to see it more closely?" (takes eye from defendent and approaches officer) "Would you please demonstrate how you determined he was drunk by looking at this eye?"

Amused jury. Upset judge. Angry prosecutor. Red-faced officer.

Acquittal.

[WildBill]

Much testimony and cross examination, but somewhere along the line, the defendent removed his glass eye and held it up for all to see, while his lawyer asked the officer "Did THIS eye look drunk to you as well? Do you need to see it more closely?" (takes eye from defendent and approaches officer) "Would you please demonstrate how you determined he was drunk by looking at this eye?"

Amused jury. Upset judge. Angry prosecutor. Red-faced officer.

Acquittal.

This is the stuff of movies.

I have a similar story, but not so dramatic. I had a friend who contracted polio when he was a child and spent a year in an iron-lung. Because of his polio, one leg was shorter than the other and he spend the rest of his life having to wear a brace. He called it his "peg leg".

One night he was driving and got pulled over by the police for suspected "DUI". Of course, with one leg shorter than the other, he couldn't walk a straight line if his life depended on it, so he was arrested. He tried to explain his situation to the officer, but he wouldn't listen. I wasn't there, but I can imagine that Joe wasn't the most co-operative suspect.

Anyway, he had to hire a lawyer. His lawyer got a letter from his doctor and sent it to the DA, who eventually dropped the charges so he didn't have to go to trial.