CWI, Carrying While Intoxicated?

[Maxwell]

I think I'm down to the simple answers.

Don't drink (or do anything else that may impair your motor functions and response time) and drive.
Don't drink (or do anything else that may impair your motor functions and response time) and carry.


And always remember the golden statement: " No Sir Officer I have no idea where that bottle came from..."

[cb1000rider]

So, if a LEO writes a PI ticket, but doesn't get video, breathalyzer or blood draw, then it would be only your word against his sans any witnesses for either side. Same for DWI or CWI, if an officer chooses to arrest you for it, but doesn't get additional evidence like a breathalyzer or blood draw, then the whatever evidence there is would have to prove you were intoxicated in court if you fought it. As a LEO, you work to build a solid case when you make arrest so it will stick and prove your arrest was justified. Defense attorney's work to break that evidence down so as to disprove your case.

Keith, everything you said is true.. Instead of me just indicating that a "CWI" arrest can be much more subjective.. And I am suggesting that it can be quite unreasonably subjective... Maybe one of the resident LEOs could tell us their success rate in the courtroom when it's just two versions of a story with no other evidence.

What our laws say and how are courts "should" be are one thing.. It may deviate with reality here and there.

[Keith B]

Maybe one of the resident LEOs could tell us their success rate in the courtroom when it's just two versions of a story with no other evidence.

What our laws say and how are courts "should" be are one thing.. It may deviate with reality here and there.

Here is my history both as a LEO and former LEO.

As a LEO I saw a few cases where LEO's failed to properly gain evidence that was available and it definitely was hurtful to their case being solid. Had they collected the evidence or gotten some other witness statements they would have had a much more firm case. In those instances the verdict went both ways, some still got a conviction and a couple got off.

I have been in several criminal trial voir dires where I specifically made the comment that lacking any evidence to the contrary I will have a hard time being impartial and will tend to lean toward the LEO's testimony vs the defendant due to my law enforcement background. I think many people, even those who are not former law enforcement may do the same, but for me I will take the LEO's testimony over the defendant unless something doesn't sound right. I can't just throw it out as impartial.

So, IMO if an officer does what they should they will work to get additional evidence of intoxication to give their case more validity over just their discretion. Doesn't mean they won't get the charge to stick if they don't, but it will solidify their case if they do.

Hopefully others will weigh in here.

[jbarn]

So what happens to the case if you arrest for DWI, no tape of field sobriety, no breathalyzer, and no blood test?
PI, these get prosecuted successfully all the time.

Keith, I'm simply suggesting that a "CWI" can be very subjective and it's not subject to the same level of testing that a DWI would. LEO says "drunk" defendant says "not". No witnesses. Officer has training and no reason to lie about it. How will that shake out?

As such, you're less protected against being charged if you're sober.

Keith has handled the response quite well, so let me address this from a different perspective.... Why would a LEO have cause to detain you and determine you are intoxicated? Which is more likely, that he discovers you are carrying a gun, THEN determines you are intoxicated, or he has reason to suspect you are intoxicated and then discovers you are carrying?

What is going to draw the attention of LE to you? Specifically? The answer is, behavior that indicates intoxication.

Is it subjective? Yes, to an extent. But there are years of case law regarding what makes intixication. My PI reports had the same information regarding identifying imtoxication as did my DWI reports. Right up until an officer administers a blood or breath test his decision to arrest a person and then request a sample is based on subjective evidence, just like PI. And in fact, PI has an additional element that must be established to arrest and/or convict; it must be shown the person was intoxicated to the point that he was a danger to himself of others. Not so required for DWI and CWI.

I guess what my bottom line is although CWI is subjective, if you are not really intoxicated why would an officer even be taking note of you? Having a beer with your steak is not likely to atteact any attention, is it?

[jbarn]

So, if a LEO writes a PI ticket, but doesn't get video, breathalyzer or blood draw, then it would be only your word against his sans any witnesses for either side. Same for DWI or CWI, if an officer chooses to arrest you for it, but doesn't get additional evidence like a breathalyzer or blood draw, then the whatever evidence there is would have to prove you were intoxicated in court if you fought it. As a LEO, you work to build a solid case when you make arrest so it will stick and prove your arrest was justified. Defense attorney's work to break that evidence down so as to disprove your case.

Keith, everything you said is true.. Instead of me just indicating that a "CWI" arrest can be much more subjective.. And I am suggesting that it can be quite unreasonably subjective... Maybe one of the resident LEOs could tell us their success rate in the courtroom when it's just two versions of a story with no other evidence.

What our laws say and how are courts "should" be are one thing.. It may deviate with reality here and there.

The jury may give whatever weight they want to the credibility of a witness over another. Juries are made up of people, and they react like people.

I once had a sold DWI. textbook. He was not fslling down drunk, but clearly impaired. Defendant was a tall, muscular and blonde Swedish young man. Had a solid intoxilozer result of .12%, , good video, etc. The jury was 4 women and 2 men. The defendant took the stand and just melted the jury. He just looked and came across as a nice, honest, hard working young man. Then the accent......heck, no way were those women going to convict him. Not guilty.

Had another case.....A person at .07 % when the intoxilizer was administered. She had wrecked her car, was driving on the two left wheels flat, the hatchback flew open when she hit whatever she hit.....She was driving down the road like that. She failed to stop for a police car with red lights. When we popped the siren, she would stick her finger in her ear like that "noise" was bothering her. We finally had to box her in to get her to stop. She was oblivious to us trying to stop her.

She threw up wine while cuffed in my back seat. She miserbly failed to field sobriety tests. Jury convicted her pretty quickly.

[WildBill]

Interesting cases. Thanks for sharing!

Here's an interesting perspective from a prosecutor on one-witness DWI trials.

http://www.tdcaa.com/node/3506" onclick="window.open(this.href);return false;

[Jumping Frog]

Maybe one of the resident LEOs could tell us their success rate in the courtroom when it's just two versions of a story with no other evidence.

. . .As a LEO I saw a few cases where LEO's failed to properly gain evidence that was available and it definitely was hurtful to their case being solid. Had they collected the evidence or gotten some other witness statements they would have had a much more firm case. . . .

So, IMO if an officer does what they should they will work to get additional evidence of intoxication to give their case more validity over just their discretion (emphasis added).

When we are discussing a case that does not hinge upon BAC, many people here seems to be focused on the results depending upon "officer discretion", or complaining that it is "entirely subjective".

That isn't how I look at it at all. First, in the absence of BAC, it is up to the officer to be able to articulate all the information he noted that led to the conclusion this driver was impaired. We all know the common ones, such as stumbling, unable to keep your balance, slurring words, red eyes, dilated pupils, strong smell of alcohol, strong smell of marijuana, etc. But there are also objective results to field sobriety tests, such as the Walk-and-Turn test, the One Leg stand test, or the Horizontal Gaze Nystagmus (HGN). An officer who does a good job helping the jury to understand all the information he used to reach that conclusion changes the game. It is no longer "entirely subjective", it is now proven beyond a reasonable doubt.

There is a large amount of case law covering impaired driving, plus there is a large industry of defense attorneys who understand this case law and how to defend a case. An officer who can articulate clearly the evidence can and does win these cases. Without such clear evidence, the defense attorney is waiting to pounce. This is way beyond "officer discretion" or "entirely subjective".

[srothstein]

Maybe one of the resident LEOs could tell us their success rate in the courtroom when it's just two versions of a story with no other evidence.

Anyone with experience will tell you that it really is a roll of the dice when any case goes before a jury. I have won cases where the only evidence was my testimony and I did not even give the SFSTs. I have also lost cases where the person blew and had a BAC over the limit. Juries take all sorts of factors into account that really have nothing to do with the case. They look at how the defendant comes across while sitting in the courtroom, whether they appear sorry or scared or smug or whatever. They consider the personalities of the two attorneys. They look at the cops testimony and consider how professional he sounds when he says what is happening.

Two examples of this come to mind. One case I lost had a pretty, young female defendant who blew about .12 when the limit was .10. The attorney managed to convince them, according to talks afterward, that this was not really drunk - just an innocent youthful indiscretion. In another case, the defendant made the trial last five days and the jury just got tired and irritated at his keeping them there. the prosecution had rested the second day. The reason for the loss is conjecture based on the attitudes the jury displayed in the box. When the trial ended, the deliberations were only about 15 minutes before the guilty verdict came in.

If it is just me against the defendant, I will bet on me every time. But, if it is another officer alone against a defendant, I would refuse to bet because it could go either way.

[BAW1967]

The way I look at it is is: If you are serious about carrying, then don't drink. When I took my CHL class, the lady that taught it said her and her husband had CHL's. If one of them wants to drink , then that one doesn't carry and the other one does. If not then both of them carry. I like my beer, but if I want to carry which I do, then no alcohol for me.

[jbarn]

The way I look at it is is: If you are serious about carrying, then don't drink. When I took my CHL class, the lady that taught it said her and her husband had CHL's. If one of them wants to drink , then that one doesn't carry and the other one does. If not then both of them carry. I like my beer, but if I want to carry which I do, then no alcohol for me.

That makes sense to me. I hope if you drive, no alcohol either.

[jmra]

The way I look at it is is: If you are serious about carrying, then don't drink. When I took my CHL class, the lady that taught it said her and her husband had CHL's. If one of them wants to drink , then that one doesn't carry and the other one does. If not then both of them carry. I like my beer, but if I want to carry which I do, then no alcohol for me.

Sure does take all the guess work out of the equation.

[Oldgringo]

The way I look at it is is: If you are serious about carrying, then don't drink. When I took my CHL class, the lady that taught it said her and her husband had CHL's. If one of them wants to drink , then that one doesn't carry and the other one does. If not then both of them carry. I like my beer, but if I want to carry which I do, then no alcohol for me.

Sure does take all the guess work out of the equation.

All of the legal rhetoric aside, you will be as "drunk" as the arresting LEO says you are until you, and your attorney, convince an unfamiliar judge differently. Why chance it? If you want/need a drink, do it at home. There, you know the judge....maybe.