Drinking/Intoxicated clarified in Penal Code?

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baldeagle
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Re: Drinking/Intoxicated clarified in Penal Code?

#16

Post by baldeagle » Fri Jul 03, 2015 11:55 am

LSUTiger wrote:In Penal Code Section 49.01, can an officer claim A if B is not met? That's a judgement call. I would prefer not to leave anything to an officer's judgement.

Penal Code Section 46.035:
(d) A license holder commits an offense if, while intoxicated, the
license holder carries a handgun under the authority of Subchapter H,
Chapter 411, Government Code, regardless of whether the handgun is
concealed.

Government Code Section 411.171:
(4)(6) "Intoxicated" has the meaning assigned by Section 49.01, Penal Code.

Penal Code Section 49.01
(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
I was foreman on a petit jury that convicted a woman under A. The question for the jury is, what is the normal use of one's mental or physical faculties when under the influence. In her case she was convicted because she was driving erratically but most importantly because she was returning two friends, one of whom was passed out, back to their cars so they could drive home. If she had the normal use of her faculties, she would have called a cab for her friend who obviously would not be able to drive safely.
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WildBill
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Re: Drinking/Intoxicated clarified in Penal Code?

#17

Post by WildBill » Fri Jul 03, 2015 12:04 pm

baldeagle wrote: I was foreman on a petit jury that convicted a woman under A. The question for the jury is, what is the normal use of one's mental or physical faculties when under the influence. In her case she was convicted because she was driving erratically but most importantly because she was returning two friends, one of whom was passed out, back to their cars so they could drive home. If she had the normal use of her faculties, she would have called a cab for her friend who obviously would not be able to drive safely.
Very interesting. I had not considered that could be a factor.
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Re: Drinking/Intoxicated clarified in Penal Code?

#18

Post by ElGato » Fri Jul 03, 2015 2:49 pm

I have talked to LEO's who will arrest if they smell alcohol, other's want a .08, sometimes hear both sitting at the same table. I teach that and leave it up to them with the suggestion that they abstain.
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Re: Drinking/Intoxicated clarified in Penal Code?

#19

Post by locke_n_load » Mon Jul 06, 2015 12:07 pm

I believe the Constitutional Carry bill had wording to define "intoxicated" to mean BAC of .08%, but that did not pass. A clarification next session would be nice.
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Re: Drinking/Intoxicated clarified in Penal Code?

#20

Post by EEllis » Mon Jul 06, 2015 1:00 pm

ElGato wrote:I have talked to LEO's who will arrest if they smell alcohol, other's want a .08, sometimes hear both sitting at the same table. I teach that and leave it up to them with the suggestion that they abstain.
Generally speaking with a DUI it's almost impossible to get a conviction without having some certified reading of blood alcohol level if the individual has a decent attorney. So much so it's rarely tried anymore. I would expect it to be the same with a chl.

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Re: Drinking/Intoxicated clarified in Penal Code?

#21

Post by Keith B » Mon Jul 06, 2015 3:07 pm

EEllis wrote:
ElGato wrote:I have talked to LEO's who will arrest if they smell alcohol, other's want a .08, sometimes hear both sitting at the same table. I teach that and leave it up to them with the suggestion that they abstain.
Generally speaking with a DUI it's almost impossible to get a conviction without having some certified reading of blood alcohol level if the individual has a decent attorney. So much so it's rarely tried anymore. I would expect it to be the same with a chl.
:iagree:
While it would be possible if the intoxicants are not alcohol and you had to make the case, but if it is strictly alcohol then they should be doing everything they can to strengthen the evidence by doing a BAC test.
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Re: Drinking/Intoxicated clarified in Penal Code?

#22

Post by EEllis » Mon Jul 06, 2015 8:11 pm

Keith B wrote:
EEllis wrote:
ElGato wrote:I have talked to LEO's who will arrest if they smell alcohol, other's want a .08, sometimes hear both sitting at the same table. I teach that and leave it up to them with the suggestion that they abstain.
Generally speaking with a DUI it's almost impossible to get a conviction without having some certified reading of blood alcohol level if the individual has a decent attorney. So much so it's rarely tried anymore. I would expect it to be the same with a chl.
:iagree:
While it would be possible if the intoxicants are not alcohol and you had to make the case, but if it is strictly alcohol then they should be doing everything they can to strengthen the evidence by doing a BAC test.
If you can test, and normally do, then a jury would have some issues with why it wasn't done. Now if there isn't a way of immediately testing then it's would be much easier to explain .


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Re: Drinking/Intoxicated clarified in Penal Code?

#23

Post by o b juan » Mon Jul 06, 2015 9:36 pm

When I talked with the DPS instructor after the Class I said that In La. back in the 60's wwe could site for DuI or DWI
He said this aint La and We dont have DUI.

Does Texas have DUI and please sight the PC # ?
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Re: Drinking/Intoxicated clarified in Penal Code?

#24

Post by joe817 » Mon Jul 06, 2015 11:11 pm

o b juan wrote:When I talked with the DPS instructor after the Class I said that In La. back in the 60's wwe could site for DuI or DWI He said this aint La and We dont have DUI. Does Texas have DUI and please sight the PC # ?
You'll have to dig deeper than this to satisfy the answer to your question:

"What is the difference between a DUI and a DWI in Texas?
Difference between a DUI and a DWI in Texas
DUI in Texas

A Driving Under the Influence (DUI) is classified as a class “C” misdemeanor. This means that you can not receive jail time and a maximum fine of $500.00. (for a first offense, for subsequent offenses you can receive significant jail time). However, along with this fine can be probation, along with community service and alcohol awareness classes. Likewise, the Texas Department of Public Safety will issue a notice of suspension and try to suspend the minors drivers license in the majority of these cases. This license suspension is the same administrative license revocation (ALR) process that is used in adult cases.

In summary, a person under 21 is not allowed to drink any alcohol and then drive a car. If an officer testifies that he/she smelled an alcoholic beverage on a minors breath during a traffic stop then the minor will be cited for DUI. Again, this is true even if the officer feels the minor is both below the .08 legal limit and has not lost the normal use of his/her mental facilities, but has consumed “some or any” alcohol. If a minor’s case is mishandled it can have terrible long-term effects on the minors criminal record and lengthy drivers license suspensions. It is therefore very important that these cases are taken seriously.
DWI In Texas

Alcohol and drug-related traffic offenses, commonly known as driving while intoxicated (DWI), are frequently prosecuted criminal offenses, and also carry with them administrative penalties. If the alcohol concentration in a person’s blood, breath, or urine is .08 percent or greater, the person is considered intoxicated by law. Under some circumstances, the legal definition of intoxication is met even if a person’s alcohol concentration is lower than .08 percent. Having alcohol, a drug, or a controlled substance in one’s body that causes loss of normal use of mental or physical faculties also is considered intoxication. If the person is operating a vehicle, vessel, or even water skis in a public place, he or she is considered to be driving while intoxicated, which is a Class B misdemeanor. Boating or operating an aircraft while intoxicated also are crimes.

The minimum amount of jail time for driving while intoxicated is 72 hours, unless there is an open container of alcohol in the person’s possession, in which case the jail time is at least six days. Consuming any amount of alcohol while operating a motor vehicle also is an offense.

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