HCP and Alcohol

[Oh Shoot]

...

If someone else can find a specific TCA entry that allows for the Charge of DUI with less than .08% BAC, please enlighten us.

Interesting, in that I see this statute has been revised, although I can't read the "compiler's notes" as suggested in the public version. I thought there was indeed a more general description for the alcohol part, but seems it is indeed now rigid that the prosecution must prove .08. Period.

I could not find any TCA entry or Case Law that defines "Under the Influence" as it relates to Firearms. However, I would wager that the first time someone is charged under that provision that actually does have a lower BAC, you can bet the lawyer will bring it up (and then we will have our case law)....

Correct, no definition of "carrying under the influence".

Good points, and I'd wager you're correct about falling back onto .08 for setting case law precedent.

- OS

[Guest waldo]

I did not mean to touch off a fire storm. I was just a little grey on the matter. It seems that if you drink anything at all you should not carry. I am cool with that. That is all I wanted to know. Thanks for the replies.

Edited November 21, 2010 by waldo

[Garufa]

I did not mean to touch off a fire storm. I was just a grey on the matter. It seems that if you drink anything at all you should not carry. I am cool with that. That is all I wanted to know. Thanks for the replies.

To summarize...if you are carrying do not drink. If you are going to drink do not carry. There is nothing wrong with either, just don't do it together.

If out for a day at the range or in your back yard, do not drink while handling or shooting guns. Do not play with loaded guns at home while drinking.

Maybe we can have another 80 posts to say the same thing.

Edited November 21, 2010 by Garufa

[DaveTN]

For the record...

Someone mentioned being in danger of DUI while mowing. I have yet to find any proof this is true.

Man arrested for DUI ... on a lawn mower - Oak Ridge, TN - The Oak Ridger

Man Arrested for DUI on Lawnmower - WRCBtv.com | Chattanooga News, Weather & Sports

TENNESSEE DUI GUY: Lawnmower driver convicted of DUI 6th

Second, DUI in tennessee is defined in TCA 55-10-401.

If someone else can find a specific TCA entry that allows for the Charge of DUI with less than .08% BAC, please enlighten us.

I don’t pretend to be an expert on Tennessee law, but it appears to me that 55-10-401 (a) 1 could be used to charge DUI and does not require a BAC level.

55-10-401 (a) 2 would be used when the persons submits and has a BAC over .08%.

The difference would be that under 1 a person could be charged with DUI with a BAC lower than .08% or when the BAC is unknown; however the state would need to prove they were impaired. Under 2 the .08% is a legal presumption on impairment.

I was a Police Officer in Illinois and that was the way it was there. You could be charged at less than the presumed limit, but the burden of proof was greater on the state.

Maybe one of the lawyers here that handles DUI cases can clear this up for us.

Most people say they won’t blow so BAC won’t be an issue with those people.

Also, The average healthy adult metabolizes 15mL of alcohol per hour. That means that if you chug 1 12oz beer, a little more than an hour later your BAC will be nearly undetectable.

If you ever find yourself standing in front of a cop that is asking you to submit to DUI tests; chances are one or two beers will be the issue. Applying math to BAC is rolling the dice.

[Guest m&pc9]

Man arrested for DUI ... on a lawn mower - Oak Ridge, TN - The Oak Ridger

Man Arrested for DUI on Lawnmower - WRCBtv.com | Chattanooga News, Weather & Sports

TENNESSEE DUI GUY: Lawnmower driver convicted of DUI 6th

]

All 3 of these were driving on the road.

I was talking about actually mowing my grass and having a beer. Not drunk and no where near the .08 limit.

[Fallguy]

I don’t pretend to be an expert on Tennessee law, but it appears to me that 55-10-401 (a) 1 could be used to charge DUI and does not require a BAC level.

55-10-401 (a) 2 would be used when the persons submits and has a BAC over .08%.

The difference would be that under 1 a person could be charged with DUI with a BAC lower than .08% or when the BAC is unknown; however the state would need to prove they were impaired. Under 2 the .08% is a legal presumption on impairment.

I believe that is 100% correct.

It's just like the SD law "presumes" you were in fear of death etc... if someone forcefully and unlawfully enters your home. So the DA would have to prove you weren't to convict you...but it could happen.

So w/ a BAC 0.08% the law assumes you are impaired, you would have to somehow prove you weren't. Under 0.08% it's not assumed you are impaired, but you very well could be and could be charge and convicted.

[Oh Shoot]

...

I don’t pretend to be an expert on Tennessee law, but it appears to me that 55-10-401 (a) 1 could be used to charge DUI and does not require a BAC level.....

Maybe, since "intoxicant" could include alcohol. I guess a cruiser cam showing you falling down and barking like a dog or something might suffice. Short of that, not sure a conviction is going to be forthcoming with a decent lawyer, without a BAC or blood test.

But where are you not going to be offered a breath test before actual arrest?

My lawyer buds always agree on one point: if you're drunk, don't take the test. Presumption of guilt is set, and you're likely gonna lose license for a while, etc (no different than for a DUI conviction) but on the other hand, it's easier for them to get it reduced to reckless driving assuming they can get it before a prosecutor/judge where they have an (expensive) favor to call in.

- OS

[DaveTN]

Maybe, since "intoxicant" could include alcohol. I guess a cruiser cam showing you falling down and barking like a dog or something might suffice. Short of that, not sure a conviction is going to be forthcoming with a decent lawyer, without a BAC or blood test.

I have arrested more people for DUI than I can count and I have only had a few to go to court. They were the ones that refused to submit, refused to make a plea deal with the States Attorney, and against their attorney’s advice went to trial. They were all convicted.

Getting convictions on DUI, drugs, or domestic violence cases that go to trial is like shooting ducks in a pond.

But where are you not going to be offered a breath test before actual arrest?

You will generally always be asked to submit. Unless it a case where you fled and there is evidence you were drinking at the time.

My lawyer buds always agree on one point: if you're drunk, don't take the test. Presumption of guilt is set, and you're likely gonna lose license for a while, etc (no different than for a DUI conviction) but on the other hand, it's easier for them to get it reduced to reckless driving assuming they can get it before a prosecutor/judge where they have an (expensive) favor to call in.

Unless you know what your BAC is, I would not suggest that anyone submit to a BAC test. You are already caught and only a fool would drink and drive again after going through what you are about to go through. Unless you make a deal you will lose your license for a refusal on implied consent no matter what happens with your DUI charge.

Knowing what your BAC is; is the dangerous part. BAC has nothing to do with being drunk. I can’t tell you how many people I have arrested for DUI that said they were going to blow because they were not drunk. Back then the limit was .10 and I have never had anyone pass a breath test… not one ever.

If you can bring the kind of legal power to bear that Steve McNair did; you can walk. But most here can’t do that.

[Oh Shoot]

....

If you can bring the kind of legal power to bear that Steve McNair did; you can walk. But most here can’t do that.

Might not take quite that level of oomph (assuming you're not a public figure), but you know that you're exactly right that a generally quite expensive fix has to be in; and it takes mouthpiece power that has been in biz long enough to have made deals on enough criminal cases that, um .. "professional favors" are owed.

Certainly in America you get the best justice you can afford as an innocent party.

With enough money, you can also often pervert the system as a guilty one.

- OS

[Guest waldo]

Knowing what your BAC is; is the dangerous part. BAC has nothing to do with being drunk. I can’t tell you how many people I have arrested for DUI that said they were going to blow because they were not drunk

Can I request a blood test for BAC. I do not trust the breath test?

[DaveTN]

Can I request a blood test for BAC. I do not trust the breath test?

Where I was you could. You had to submit to a breath test first and then we would take you to the hospital and let you work it out with the doctors. You were responsible for the cost of drawing the blood and all tests. There were a couple of doctors that wouldn’t do it.

I assume Tennessee has something similar available.

[Fallguy]

Can I request a blood test for BAC. I do not trust the breath test?

I think it depends on the jurisdiction and what is available.

[mikegideon]

You can always get something like this, and keep track of your own BAC before you drive. I don't own one, but have read quite a bit about them. You can't cheap out on one. You need to get something that's good enough to be used for field screening by LEO's.

BACtrack S80 Pro Breathalyzer Professional Edition

[7dogguy]

The only laws that address it are the restaurant carry "cannot consume" law and I believe it says you cannot carry impaired. Impaired doesn't mean .08. If you're stumbling,slurring, or smell like booze you're going to find yourself in trouble I'd wager.

Whether you wanted to hear it or not you probably would have been better off not mentioning shooting and drinking. I don't care how few you've had or what your tolerance is, I wouldn't want to be around anyone who is drinking and actively handling a firearm. That's for after the guns are put up. It's really that kind of activity and admission that gives us a bad rep when we try to get laws like restaurant carry passed.

+1. I don't want to be around someone drinking and handling a firearm - recipe for disaster.

[extremescene]

My wife and I saw an off-duty RSO shooting fully automatic with his family at Stones River Range and you could smell the beer on him everytime he walked by. We didn't stay long that day. Couldn't beleive the other RSOs didn't say anything, he might have been a higher up for all I know. He and his wife had multiple full auto weapons and were doing regular magazine dumps. I've also heard of the staff drinking and shooting after hours at Stones River. It made us very nervous and unfortunately makes me think this happens more than we would like to admit.

[mikegideon]

I thought full auto wasn't allowed at Stones River. I also can't imagine ANY of those RSO's putting up with any alcohol. Why didn't you report him???

[robbiev]

My wife and I saw an off-duty RSO shooting fully automatic with his family at Stones River Range and you could smell the beer on him everytime he walked by. We didn't stay long that day. Couldn't beleive the other RSOs didn't say anything, he might have been a higher up for all I know. He and his wife had multiple full auto weapons and were doing regular magazine dumps. I've also heard of the staff drinking and shooting after hours at Stones River. It made us very nervous and unfortunately makes me think this happens more than we would like to admit.

There is a training facility that I know of personally where the lead instructor regularly drinks all day. It is a big facility on private property. No one seems to think it's a big deal. Personally, I do. I don't shoot there any more.