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I suspect that you are right! While the law states that the accused is presumed innocent, any of us who have been in criminal courts very often know that juries very often assume that if the guy was arrested and charged he must be guilty.

RossA wrote:I can tell that you have never been a defense lawyer representing someone falsely accused of DWI, with a cop lying under oath in court, with evidence proving that he's lying.

Been there, done that.

Just so I get this straight.

My reading of the law and the changes enacted by the 2013 Legislature are the same as Keith B's.

Are you saying that you are a criminal defense attorney, and that the written law itself doesn't really matter?

RossA wrote:I suspect that you are right! While the law states that the accused is presumed innocent, any of us who have been in criminal courts very often know that juries very often assume that if the guy was arrested and charged he must be guilty.

You mean like the Zimmerman trial?
I think juries believe that guys with long histories of criminal activity are guilty of what they were arrested for. Otherwise, I believe juries don't like to be told what to think. I believe many of them take their responsibilities seriously and seek to make the fairest decision the system will allow them to make.

The juries do not get to hear about their long history of criminal activity. :(

switch wrote:The juries do not get to hear about their long history of criminal activity. :(

From the court maybe not, but with today's Information Age it's almost impossible to keep that info from a jury.

RossA wrote:

The officer, with no reason to lie,

I can tell that you have never been a defense lawyer representing someone falsely accused of DWI, with a cop lying under oath in court, with evidence proving that he's lying.
Been there, done that.

Cops are people. People lie.

I wasn't clear on the point. An officer has no apparent "motive" to lie about your intoxication level. You have a motive to lie about your intoxication level. Absolutely LEOs lie about it - I've seen it in court myself. They're not going to arrest someone and then indicate they they knew the person wasn't intoxicated.

I'm suggesting that when you to go court and it is an individual's word against a LEO's word and the charge is essentially subjective intoxication, the individual is very likely to loose that battle. It's not innocent until proven guilty.. The public is inherently disadvantaged from the start when facing a subjective charge by an "expert" witness.

If I'm going to be arrested for intoxication when I'm not, I sincerely hope it's for DWI. At least that way it's not all about a LEO's professional perception. A blood or breath test is involved. These are not required for PI - and I assume for other branches of intoxication charges.

TxLobo wrote:that's what I'm saying... there is no test for PI.. there is no way to know if you are .08 or above or below.. If an officer feels that you have been drinking and you meet (in his opinion) "Section (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;"
Because there is no "OR" , because there is no test for PI..

Just being intoxicated in public is not a crime. The law says in black and white that for PI as a crime, they have to be so drunk that their behavior is dangerous to them or others. Christmas carollers who are drunkenly singing off key are not really a danger. The guy who says "hold my beer and watch this" might be.

iAmSam wrote:

TxLobo wrote:that's what I'm saying... there is no test for PI.. there is no way to know if you are .08 or above or below.. If an officer feels that you have been drinking and you meet (in his opinion) "Section (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;"
Because there is no "OR" , because there is no test for PI..

Just being intoxicated in public is not a crime. The law says in black and white that for PI as a crime, they have to be so drunk that their behavior is dangerous to them or others. Christmas carollers who are drunkenly singing off key are not really a danger. The guy who says "hold my beer and watch this" might be.

The way I was taught PI is if they cannot care for their safety or the safety of others. The law also allows one to get them a ride home vs arresting them. The ones that usually get arrested are not smart enough to take the ride home I don't agree with PI the way it is in TX. In CA not all things are bad, and for PI you get arrested in needed, go sleep it off at the jail or detox and that is it. No further action or prosecution. IMO that is more inline with the 'spirit' of the law because anybody can have a bad day and drink a few too many and fall into PI by chance. Then of course there are the PI's that approach you out of the blue for no reason while you are on duty and in uniform yelling they are going to kick your butt. The last one that did that to me started to charge me as I got out of my car, then he heard my k9 going nutts and went to the hood of my car and put his hands on it saying some profanities about his actions. My partner was VERY disappointed that he didn't get to deploy

Nooo body wants to experience the four footed officer's methods of persuasion

This thread has drifted considerably....

But...I'll add to the foray that every DWI I worked (had most at my dept 2 years in a row) I got blood. Can't argue it in trial (you can try but it's the same tired argument). No room to paint me as a liar.

Kept me out of court.

gigag04 wrote:This thread has drifted considerably....

But...I'll add to the foray that every DWI I worked (had most at my dept 2 years in a row) I got blood. Can't argue it in trial (you can try but it's the same tired argument). No room to paint me as a liar.

Kept me out of court.

Both a good LEO and a smart LEO.

An Aggie. That explains it.

Jim

TxLobo wrote:If a CHL goes out and has an adult beverage with a meal and 30 minutes later is called on to use his / her handgun, the report may show that the officer noted a smell of alcoholic beverage.. So now it comes up in the hearing that he/she had been drinking..

The same thing could happen if you didn't drink but the officer noted a smell of alcoholic beverage. Stranger things have happened. The policy gigag04 has for a blood test helps both sides consider facts instead of feelings or perceptions.

TxLobo wrote:that's what I'm saying... there is no test for PI.. there is no way to know if you are .08 or above or below.. If an officer feels that you have been drinking and you meet (in his opinion) "Section (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;"
Because there is no "OR" , because there is no test for PI.

I disagree. In the Penal Code, public intoxication is dealt with in §49.02. The principal clause reads: "A person commits an offense if the person appears in a public place while intoxicated..." Just seven lines above it is §49.01, which defines the word "intoxicated" as Keith has described:

"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.

In Chapter 49 of the Texas Penal Code, "intoxicated" means the same thing, every time, no matter where it appears.

The remainder of §49.02(a) goes on to say: "A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another." That last is a prepositional phrase that adds a qualifier to the main clause. To be publicly intoxicated, you must first meet the definition of "intoxicated" as set forth in §49.01(2); then you must also display intoxication to the degree that you may endanger yourself or another person.

Ergo, public intoxication is actually more difficult to prove than simple intoxication. A person may not have the normal use of mental or physical faculties, but also may not be impaired to the degree the person might endanger himself or another. If you doubt that, just look at §49.02(b): "It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician." That is not a defense to prosecution for being intoxicated while carrying a firearm, driving, flying, boating, or any other crime exacerbated by intoxication.

If someone meets the threshold of .08% BAC as defined in §49.01(1), then he is unquestionably intoxicated. But the definition in §49.01(2)(A)--"not having the normal use of mental or physical faculties by reason of the introduction of...any...substance into the body"--is vital because alcohol isn't the only thing that can cause intoxication. The law has to have a mechanism to deal with impairment via meth, bath salts, krokodil, or any other drug that exists now or will exist in the future.

To switch's original question, the reference isn't entirely new...it was just clarified and included in PC §46.01 by adding subdivision (18) and removing PC §46.06(b). Go back to your 2009, 2010, or 2011 DPS CHL handbook and look at GC §411.171. "DEFINITIONS," item 6: "'Intoxicated' has the meaning assigned by Section 49.01, Penal Code." It's really always been there in relation to concealed carry in the Government Code, but it wasn't expressly included as a standalone definition in Penal Code Section 46. Now it is.

And just a side note to everyone that this is the Instructors' Corner. So I would hope that these sorts of discussions would keep to matters of the written law and of presenting content to CHL students. Personally, I never drink and carry or drink and drive, but that isn't relevant in this category because it's purely personal preference. There are umpteen topics started over the past years in the general categories to accommodate those conversations.

hillfighter wrote: The same thing could happen if you didn't drink but the officer noted a smell of alcoholic beverage. Stranger things have happened. The policy gigag04 has for a blood test helps both sides consider facts instead of feelings or perceptions.

Back in the days where open containers were allowed, I drove a young lady home to DFW while she drank. I did not drink. At all.
We were stopped for having a reverse light lit. Completely valid stop.
I was asked to step out of the car as I "smelled like alcohol".
I was asked how much I had to drink, I answered - "nothing".
I was asked again. Same response.
I was told that I was a liar and that the officer could smell alcohol on my breath. I was given one more chance, to which I have the same answer.
After that an obviously angry officer gave me field sobriety. I was handed my license and sent on my way. No citation, which is good. Being called a liar by a public servant, bad.

If that was a subjective charge, I'm 99% sure I would have been in jail. Field sobriety and the fact that objective evidence is required saved my bacon.
I've seen PI used improperly in Austin on more than one occasion. It simply grants too much latitude.