I don’t drink at all and never have. As a result, I have a very low tolerance for people that drink irresponsibly, “irresponsibly” includes driving after having even a couple of beers. At the same time, I believe due process must be served, and I hope Ed gets a good lawyer that will mitigate the potential legal damage he might face.
I can even remember all of the stupid stuff I did as a 22 or 23 year old. Somehow I made it and am successful as I am nearing retirement age. That said, if you learn from your mistakes, then that’s good, if not…
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A couple beers wouldn’t get you close to the legal limit and wouldn’t even impair you unless you are a 100 pound girl or you chugged those beers real fast with no food. It would be more dangerous to talk on a cell phone or be sleepy or even eating (what got me pulled over) while driving than drinking two beers. For Ed to be that drunk to be stumbling, he probably had 10+ drinks (or a bunch of drinks paired with a drug) and clearly shouldn’t have tried to drive. That is why we have a legal limit and punishments should be strong for those who go over, increasing the punishment the more you are over the limit. No body accidentally gets drunk and drives. Still, I wouldn’t lump a person who gets drunk and drives with somebody who has a couple drinks over an hour while eating dinner.
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Even if you are not over .08 (which is ONE, but NOT the “only” legal definition of intoxication), you might still be guilty of Driving While Intoxicated if you appear to not have the normal use of mental or physical faculties by reason of the introduction of alcohol (or some other substance) into the body.
Here is the legal definition of “intoxication” in TX:
- “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 (EMPHASIS ADDED)
(B) having an alcohol concentration of 0.08 or more.
So even if you’ve only had a few beers (or even only one) and aren’t over .08 BAC…if the video evidence, testimonial evidence, etc. shows beyond a reasonable doubt that you have lost the normal use of your physical or mental faculties while operating a motor vehicle in a public place, you can STILL be convicted of DWI.
All that the .08 BAC does is make it easier for the state to make the case that you were intoxicated simply because it’s much easier to have a forensic scientist take the stand, and testify that your blood taken right after you were arrested had a BAC over the legal limit to prove your intoxication than having to view videos, listen to testimony, etc., that the defense attorneys can sharp shoot and dispute much more easily.
I’m sure that all of us know at least one person who, after having a single glass of wine, is truly NOT the same person; some people simply can’t handle their booze!!!
That person might very well lose their faculties and become “intoxicated” well under BAC .08 and after only a relatively small amount of alcohol, though admittedly, that’s a much tougher case for the state to prove.
Looks like that four wheeler was rigged and strapped properly for hauling. Hard to manage that if one is really sloshed. Should have politely refused to do the road side test and breathalyzer. The latter are most likely contaminated in some way with or without corona and the road side test are entirely subjective and difficult to pass when stone cold sober. If they take you in for a forced blood test those can also be contaminated (like going to the DMV for cancer screening) and it gives more time for BAC to go down if you have had a few.
Unless they want to make an example of Ed he should get through this with little legal consequence. I’ve known at least one female in Montgomery county that had way worse and she walked out of there with nothing but small bail and no probation. Of course it was a female and not a male and the rules are different for them. As I beat into the heads of my sons repeatedly simply don’t ever drive if you’ve even had one sip of alcohol, especially anywhere in Montgomery county.
Usually, the police agencies have a paramedic from the local EMS on call, and they generally use brand new needles and fresh test tubes with anti-coagulent to draw your blood. The entire blood draw will be filmed on the arresting police officer’s body cam to prevent defense sharp-shooting of the draw process. Special DWI blood alcohol kits with iodine prep pads, etc are used to ensure non-contamination of the sample.
If that blood test comes back over .08 from the DPS crime lab; with their expert forensic scientists testing it and then testifying to the results in court…it can be VERY tough to defend.
Note: I won a FELONY (DWI 3rd) trial last year. It had a consensual blood test with results more than twice the legal limit. OF COURSE the defense threw everything but the kitchen sink at the cops, and the forensic scientist, my fingerprint expert, etc…but it still didn’t work.
The best defense they had was that the fingerprints on one of the two past DWI judgments was unreadable, but I got around that by using the guy’s DPS driving record which had a great photo of him and which showed that a guy with his same date of birth and appearance had two prior DWIs on the very dates that we had alleged them in the indictment.
The dude was convicted by the jury and got two years in the pen from the judge.
See here:
Most often it takes that paramedic a long time to show up at the scene if they even show up at all. Sometimes the deputies get tired of waiting themselves and in those situations time is your friend.
Disclaimer. Time is your friend if your last drink was a while back.
Thanks for the info. My main point is not lumping everybody in together. I am all for strict rules with drinking and driving. Saying that no body who has a drink at dinner should drive is pushing it a little too far. Some people become more impaired by consuming too much sugar or caffeine or not getting enough sleep.
Again, it depends on the results of his blood test. If the results end up showing a BAC over .08…then let’s just say…his defense attorney’s job just got A LOT tougher!!!
If that is the case, then he needs to hope that his defense attorneys can successfully argue either that a) the stop was unjustified by probable cause (tough based on what I’ve read so far, but I haven’t seen the evidence), b) the SFSTs weren’t administered properly (again, haven’t seen the videos or read the police reports), or c) that, even if they were, the results were misinterpreted, or otherwise, the totality of the circumstances didn’t show him to have lost his faculties due to the use of alcohol at the time.
Alternately, he may be able to get a pre-trial intervention. As I mentioned above, it all depends on whether alcohol is considered a “legal narcotic,” and whether the District Attorney there in Montgomery County typically grants PTIs for first-time DWIs (not all DA’s do). If not, then perhaps they can work a plea deal for deferred adjudication and then get the arrest record expunged later.
Not really.
Here in Washington County, that paramedic on call can often be there at the jail to be the state’s Dracula in a matter of minutes; they are generally close by and the minute the cops call him and tell him that they’ve arrested someone for DWI and they are down at the county jail…POOF!!! He’s there. I wouldn’t bet my freedom on the possibility that the medic won’t show up quickly to draw your blood.
It might take a little time to get the blood warrant signed; that will buy you some time, but with judges on call and fax machines available; even that’s not as slow (and as such, as helpful to the defense) as some might believe.
Definitely depends on the county for sure and my knowledge is only limited to the stories I’ve heard from some friends and acquaintances in Harris and Montgomery. I’m sure for many counties it is a key source of revenue to fund their lush police and govt bureaucrat pensions. One is best to avoid all of it.
What do you mean by "they generally use brand new needles?
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generally = 100% of the time in this case.
They are fresh, new needles in the specially designed DWI blood draw test kits.
What I know is you give them evidence with everything you do that isn’t these 4 words “I want a lawyer.”
Yes, the cops will lie to you to make you blow. Don’t do it AND DON’T DRINK AND DRIVE!!!
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You’re going to jail anyway at that point if you are a drinker… You should utilize your constitutionally protected rights at this point in time if one should find theirself in a similar circumstance.
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Who knows the last time those breathalyzers were calibrated properly…
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Gang,
I just spoke to a few of my colleagues here at work, and apparently, Montgomery County has a reputation for being a jurisdiction that is particularly hard on alcohol related offenses.
OUCH.
Sports cannot return quick enough!!!
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Ryon - The Woodlands resident here. You’re correct on Montgomery County being hard on DWI. There was a wrong way head on collision 5 or 6 years ago on I-45 where the woman driver decided trial was too much and plead guilty to two intoxication manslaughters and one intoxication injury. This was her first arrest and convictions. I think jury recommend 15 years each on the manslaughter and 8 on the injury. The judge stacked the sentences and not concurrently. She has to serve both 15 year sentences and then 4 of the 8 before she would be eligible for parole. I believe she was 23 or 24 when she started sentences. She will be 57 or 58 before parole eligible. Lives ruined!