February 08, 2008, 15:08
AlexLaymanDefinition of Intoxicated
I was looking at this recent case:
Otto v. State The jury charge had a slightly different wording thant the indictment with regard to the definition of intoxication.
The code says:
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.
Wouldn't it be easier for everyone to understand if it was simply:
49.01.(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties
by reason of the introduction of any substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
February 08, 2008, 15:25
WHMYou are probably correct that the phrase "or any other substance" makes everything preceding it redundant.
February 08, 2008, 19:10
DustanI think its better the way the code defines. If we summed it up, wouldn't someone who has gone into anaphylactic shock by ingesting a normal food item, like a banana, technically be intoxicated?
Or is substance specifically defined as drug, alcohol, combo, etc. elsewhere?
As far as I have understood, the "any other substance" is used to include any substance that is not a controlled substance or dangerous drug, but rather increases the effects of the alcohol when combined.
[This message was edited by Dustan on 02-08-08 at .]
February 09, 2008, 09:14
SAProsecutorSo let's all go party and smoke bananas!
February 12, 2008, 12:36
WHMquote:
Originally posted by Dustan:
I think its better the way the code defines. If we summed it up, wouldn't someone who has gone into anaphylactic shock by ingesting a normal food item, like a banana, technically be intoxicated?
Or is substance specifically defined as drug, alcohol, combo, etc. elsewhere?
As far as I have understood, the "any other substance" is used to include any substance that is not a controlled substance or dangerous drug, but rather increases the effects of the alcohol when combined.
[This message was edited by Dustan on 02-08-08 at .]
A drug is a substance designed to effect the body that is not food, to paraphrase. But a banana would certainly qualify as "any other substance." Nothing in the law requires that "any other substance" be something that increases the effects of alcohol.
February 12, 2008, 12:46
kyearyIsn't the real problem that courts make us plead the intoxicat, which is not a element. That is what needs to be fixed.
February 12, 2008, 12:46
David Newellquote:
Originally posted by SAProsecutor:
So let's all go party and smoke bananas!
Well, they do call it mellow yellow.
February 14, 2008, 18:02
WacoEjusdem generis
(Of the same kinds, class, or nature)
When a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them.