Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011):<\/p>\n
As to Tellefsen\u2019s intoxication, the parties do not dispute that Tellefsen, with a blood alcohol level between approximately .27 and .33 at the time he gave his consent at approximately 3:30 p.m., … was legally intoxicated. However, as Dr. Pankiewicz explained, there is a distinction between intoxication and impairment. … Intoxication refers to a specific measure of alcohol level, while impairment is \u201cwhat that actually does to a person.\u201d … Dr. Pankiewicz further explained: \u201c[L]evel of intoxication does not necessarily equate with level of impairment. There\u2019s going to be a variety as far as that individual\u2019s capabilities, depending on their own history and their own physiologic makeup.\u201d … Thus, for example, if an experienced and an inexperienced drinker both have a blood alcohol level of .1, the experienced drinker will perform better than the inexperienced drinker at the same level of intoxication. … Dr. Pankiewicz testified that while the blood alcohol content number gives a guideline, the real measure of function is a person\u2019s actual demonstrated capacity. …<\/p>\n
Here, while Tellefsen was intoxicated, exhibiting occasional slurred speech and smelled of alcohol, there was no indication of impairment or that Tellefsen did not know what he was doing. Both Sergeant Jaekl and Officer Herbst testified that they suspected Tellefsen was intoxicated; however, both testified that Tellefsen did not appear impaired. … Both officers testified that throughout their interaction with Tellefsen, he was lucid. He gave responsive answers to questions and gave detailed explanations.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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