I�d like some feedback on an idea I have for expanding the definition of �intoxicated� to include those persons who claim that the amount of alcohol they have consumed has not, at the time of the traffic stop, been absorbed sufficiently to put their blood or breath over the legal limit. It occurred to me that we could eliminate this defense altogether if we simply defined intoxication a little more broadly, as follows:

PC 49.01 (2)(B) having an alcohol concentration of 0.08 or more, or having consumed a sufficient amount of alcohol to raise the person's alcohol concentration to 0.08 or more at any time after consumption.

Moreover, it seems to me equally irresponsible for a driver to drink that much alcohol and then roll the dice as to whether he will absorb enough of it on his way home to reach the legal limit.
Does anyone have any suggestions or comments?

You may wish to look at Oklahoma's law. I believe that Nevada has a similar law patterned after Oklahoma's, as may other states. If I remember correctly, it states that it is illegal to have a blood alcohol is 0.08 g/dL or greater within 2 hours of having operated a motor vehicle. This law was designed to eliminate the "last gulp" defense of which you spoke. I could discuss the relevant pharmacodynamics, etc. surrounding such a law, but it would probably bore you.

You run into issue with the Defendant saying "I would have been home in 2 minutes as I was less than a mile from my house."

I think the stronger argument is to say that even if a person's BAC was less than 0.08 that they did not have the normal use of their mental or physical faculties. I wish at Baby Prosecutor's there was an intoxilyzer provided so that we could evaluate our own physical and mental faculties against the machine.

The excuse "I could have made it home in time" seems to me more suited to a mitigation argument at the punishment phase. Am I the only one, or do other people think that this last gulp, beat the clock attitude is almost as irresponsible as any other DWI?

Unless he was drinking at a bar two minutes from his home, you can always show the route he had to take to get home.

As a forensic toxicologist, I strive to be objective in these matters. As evidence of that, I have testified for the both prosecution and for the defense, when the facts warranted each.

As such, my understanding is that one can already be prosecuted for driving under the influence if one has "lost normal use of mental and physical abilities" or some similar wording. I am fine with that. But taken to the extreme, one could argue scientifically that even one drink would fall into this category, unless one defines "normal" in some statistical way, which would be quite cumbersome. I don't think that was the intent of the law. That is why I think it is very important to rely on a per se value except in rare circumstances, even if you want to define a time period surrounding driving. At least then you have a bright-line standard. Just a non-attorney thought, for what it's worth.

Rob, there used to be a drink-and-blow offered at Intox. Manslaughter school. That stopped after an unfortunate incident involving a couple of prosecutors. Bad things, man...