Definition of intoxicated

[switch]

I seem to remember, way back when, the only definition of intoxicated was the 'incapable of exercising normal judgement...", DPS was real clear that .08 BAC was not applicable to CHL.s (Obviously if you were .08 or over, you were but could also be intoxicated when (well) under .08.)

Now, the definition for intoxicated refers you to PC 49.01 (which is NOT in the CHL handbook). When I look up 49.01 it includes BAC .08 and 'normal judgement'.

Did my old timers kick in? Or did they change? I looked in my 2009/2010 and it was the same.

I could not find any reference where 49.01 was changed either.

[baldeagle]

The law says "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". I was foreman on a jury that convicted a woman of DUI because she was returning her passed out passengers to their vehicles so they could drive home. A person with the normal use of their faculties would not do that. They would either drive them home or hale them a cab. (She also failed the eye nystagmus test and the walk the line test.)

[Keith B]

Intoxication laws are the same for CHL and DWI. Period. .08 BAC or greater is intoxicated. Less than that that is officer discretion as to if you meet the statute standards.

DPS will tell you that .08 is not the standard, but that is because you can be less and still intoxicated per 49.01, both while driving or carrying.

[Cedar Park Dad]

Intoxication laws are the same for CHL and DWI. Period. .08 BAC or greater is intoxicated. Less than that that is officer discretion as to if you meet the statute standards.

DPS will tell you that .08 is not the standard, but that is because you can be less and still intoxicated per 49.01, both while driving or carrying.

AS an aside has this been tested via court case yet?

[MoJo]

Yes, 0.08% is the point where there is no question of one's intoxication. Less than 0.08% there is a burden of proof on the officer making the arrest as to impairment.

[switch]

IIRC, DPS agrees. BAC .08 is ONLY for DUI. But, the CHL handbook defines 'intoxication' (on pg 3) as Penal Code 49.01. 49.01 is NOT in the handbook but when you look it up, it has both - 49.01 (2) intoxicated means (A) not having normal use.... OR (B) BAC =/> .08.

Course, the key word is 'OR', means if you are impaired you are intoxicated, even if you are below .08.

Actually, they can use 'impaired' for DUI's too BUT seldom do. They like the scientific standard, They do not like to spend a lot of time trying to convince a judge/jury that you were 'impaired'. Probably looking at a 2 day trial. Easier to just go catch some more drunks over .08. Normally BAC < .08 is a 'get out of jail free' card for drivers, NOT for CHL's. :(

I once had a jailer getting his CHL tell me they did not get drunks in the jail that were .08. When they are arrested, they are usually .16 or higher.

[texanjoker]

I seem to remember, way back when, the only definition of intoxicated was the 'incapable of exercising normal judgement...", DPS was real clear that .08 BAC was not applicable to CHL.s (Obviously if you were .08 or over, you were but could also be intoxicated when (well) under .08.)

Now, the definition for intoxicated refers you to PC 49.01 (which is NOT in the CHL handbook). When I look up 49.01 it includes BAC .08 and 'normal judgement'.

Did my old timers kick in? Or did they change? I looked in my 2009/2010 and it was the same.

I could not find any reference where 49.01 was changed either.

Think of this verbage: They can't care for their safety or the safety of others.

[cb1000rider]

Less than 0.08% there is a burden of proof on the officer making the arrest as to impairment.

In reality, the burden is going to be on you:
The officer, with no reason to lie, and who has training on alcohol impairment says that in his opinion you were intoxicated. Where is the burden now?
He doesn't need to field sobriety test you. He doesn't need to check your BAC. Both of those are great protections if you're under suspicion of DUI and not actually intoxicated. None of them are required for a non-DUI arrest.

You are what an officer says you are, unless you can prove differently. Be aware of that before you put yourself in a position where a low-bar arrest might be applied.

[jimlongley]

Due to the other thread, I found this quite ironic.

. . . The officer, with no reason to lie, and who has training . . .

[b322da]

Less than 0.08% there is a burden of proof on the officer making the arrest as to impairment.

In reality, the burden is going to be on you:

The officer, with no reason to lie, and who has training on alcohol impairment says that in his opinion you were intoxicated. Where is the burden now?
He doesn't need to field sobriety test you. He doesn't need to check your BAC. Both of those are great protections if you're under suspicion of DUI and not actually intoxicated. None of them are required for a non-DUI arrest.

You are what an officer says you are, unless you can prove differently. Be aware of that before you put yourself in a position where a low-bar arrest might be applied.

My experience has been that CB1000rider is more often than not literally correct, although as a strict matter of law what he says is not, and I am sure he would agree.

Regardless of what the "test" might be, we sometimes confuse the test used by an officer whether or not to arrest (or charge) an alleged offender, with the test used by a judge or jury in determining guilt or innocence.

Put in different terms, an officer is faced with a personal decision to determine whether or not he or she has probable cause to arrest or charge an alleged offender. His or her decision is made easier, of course, if there is objective evidence like a BAC. It is not a decision as to whether or not an alleged offender is guilty or innocent. A judge or a jury has to make the latter decision when the alleged offender does not plead guilty, as did the jury of which baldeagle was the foreman, reported in his above post.

More strictly, the burden of proof in a DUI case, like that in all criminal cases, is always on the state. An alleged offender often, when faced by the state's evidence, be it the testimony of an LEO or a BAC or such, has the burden to come forward, but he never actually has the legal burden of proof.

This may easily be dismissed as legal gobble-de-gook, but it might be very important to an alleged offender. There have, for example, been many a lawyer who made a good, if perhaps modest, living representing that alleged offender, entering a plea of not guilty, and thereby calling on the assistant DA to put the arresting officer on the stand to testify as to his probable cause for making the arrest. Most officers cannot be expected to enjoy spending a day sitting in the hall outside a courtroom waiting to be called as a witness in a simple DUI case, nor can his Chief be expected to enjoy having his personnel sitting out in that hall when he is usually short-handed anyway. Just look in the Yellow Pages and you are likely to find one or more of those lawyers' advertisements.

The result often is that the assistant DA will just drop the charges, or perhaps reduce a serious charge to a minor charge, just to get the case out of the way, as he or she may have a very long list on today's docket. Each individual charged person has to make an important decision -- is the cost of that lawyer in such a case exceeded by the possible cost, and there may be many, of a finding of guilt?

Of course the nature of the evidence had by the assistant DA, be it a single officer's opinion as to impairment, or, on the other hand, other witnesses of impairment or an unchallengeable BAC of 0.16, or such, is an important factor. So might be irritating a judge, who is well-familiar with this process, by pleading not guilty when the evidence of guilt is clear, thereby "wasting the time" of the judge, the prosecutor, and an LEO witness.

Jim

[switch]

My real question:

In 1995, the CHL program specifically excluded BAC as a test for intox. The ONLY definition was 'impaired'. In fact, I seem to remember a couple of proposed laws/changes ovef the years that were going to add BAC to the intox test/rules for CHLs and they never passed.

Now, the definition for intox refers to PC 49.01 which DOES include BAC as well as 'impaired'.

When did it change?

I realize that we could be charged w/carrying illegally even when under .08. That's not an issue. (We could be charged w/DUI while under .08, but that's rare.)

[Crossfire]

Switch - the answer to your original question is, THIS YEAR. They added 49.01 to the lesson plan outline THIS YEAR. It has been implied, but not actually included in the instruction guidelines, until 2013.

Now, if they add it to the latest CHL-16, that will be a bonus!

[sjfcontrol]

Switch - the answer to your original question is, THIS YEAR. They added 49.01 to the lesson plan outline THIS YEAR. It has been implied, but not actually included in the instruction guidelines, until 2013.

Now, if they add it to the latest CHL-16, that will be a bonus!

What "Instruction Guidelines" or "lesson plan outlines" were available prior to 2013?
All I ever got was the original "book" of powerpoint slides printout used during the week-long instructor's class. I wouldn't classify that as either an outline or a guideline.

[switch]

Actually, I was looking in the CHL handbooks. As far back as 2009-2010, the definition for intox was 49.01.

I don't know if I have older versions. :(