First, and most important, is to remind everyone that the incident under discussion happened in OHIO, not Texas. They obviously have different laws there as Texas has no such charge as improperly handling a firearm in a vehicle or using a firearm while intoxicated (if you are intoxicated in Texas and have a CHL and a weapon, the correct charge would be Unlawfully carrying of handgun by license holder).
I do not know what Ohio's intoxication laws are, but Texas has specific definition's of intoxication. These were posted already in this thread, so I won't go over them again. I will point out that this specific case might be a sample intoxication case under Texas laws, if the person had alcohol (or any other intoxicant) in his system. In a case like this, if the person had been drinking (and I wanted to arrest him), I could argue that his lack of fine motor skills was caused by the intoxication. This would meet the first part of the definition of intoxication of not being in possession of his normal faculties. I would argue that he normally knows how to load his firearm in a safe manner by virtue of his having passed the CHL test. I would then argue that the fact that he was still trying to manipulate his firearm, with the resulting hole in his foot, shows that he was a danger to himself and others, thus meeting the second half of the public intoxication test. Then I would charge him with the PI and Unlawfully Carrying charges both at once.
Of course, I would probably not charge him in this case since I always figured that the purpose of the arrest was to get people to learn to behave better, and if a hole in his foot doesn't teach him to not drink and use firearms, nothing will.
Right2Carry wrote:I have always believed that you could invoke the 5th when asked to perform any field sobriety test, breathilizer, or blood test. I may be wrong on this but I would never take one of those tests and would invoke my 5th amendment rights under the constitution. Sure I might have my license suspended for 6 months to a year for failing to do so, but hey that is better than a DUI conviction.
One of the interesting things about the law is that you do have the right to refuse to take any type of field sobriety tests. If you do this, the officer will have to form his own judgment on your intoxication. He will probably arrest you anyway since he thinks you are intoxicated or he would not have asked about the tests. Most of our cars have video now, so it does not hurt the case nearly as much as it used to. In the old days, you could really convince a jury that the officer had no probable cause to arrest you if you refused the field tests. It made the DWI conviction a much harder case to win.
Now, I would start the camera rolling before I hit the red lights, so I can show the jury how you were driving that made me want to stop you. Then, your speech and walking abilities are still on video when you refuse, and it will get shown in court. The odds are better now on the conviction if the officer knows how to write a report (which still gives you even odds with a good attorney - cops are generally bad report writers).
NinteenEleven wrote:Refusing a field sobriety test WILL result in suspension of your license. You will be taken to jail on suspicion of DUI/public intoxication, and a judge will be awakened to issue an order to take your blood. Then you're held down, and the blood taken from you. Afterwards, you'll likely face that same cranky, tired judge the next morning when you're arraigned.
Well, refusing the field sobriety test will not result in any suspension of your license. That occurs only when you refuse the blood or breath test at the station. But, as I said, it is a pretty good probability that you will be arrested. You would then get offered the breath test that would get the license suspension when you refuse. We would not wake up a judge, or do anything else of that nature. The law already provides for a forced blood draw if there is a fatality or very serious injury accident. And if there is not a serious injury, it is not allowed in most cases and not worth the trouble to get a search warrant for a simple DWI.
As for the cranky judge, at least it is just the arraignment where he sets bail. It is highly unlikely that it would be the county or district court judge who will actually hear the case. Of course, they are supposed to be above holding a grudge against someone because they are judges, and we all know how true that is, right?
I think the bigger problem when you refuse the field sobriety test is that you irritate the officer (in most cases). He will remember the case better in court and will do his best to get as many extra charges as he can get the D.A. to accept.