Definition of Intoxicated

February 08, 2008, 15:08

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

WHM

You are probably correct that the phrase "or any other substance" makes everything preceding it redundant.

February 08, 2008, 19:10

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 .]

February 08, 2008, 20:30

Dustan checks in.

February 09, 2008, 03:26

Dustan

quote:
Originally posted by Greg Gilleland:
Dustan checks in.

February 09, 2008, 09:14

SAProsecutor

So let's all go party and smoke bananas!

February 12, 2008, 12:36

WHM

quote:
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

kyeary

Isn'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 Newell

quote:
Originally posted by SAProsecutor:
So let's all go party and smoke bananas!

Well, they do call it mellow yellow.

February 12, 2008, 15:38

Ken Sparks

Quite rightly!

February 14, 2008, 18:02

Waco

Ejusdem 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.