Texas CCW, alcohol consumption, and intoxication


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divemedic
January 9, 2009, 01:00 PM
In another thread, a member stated that Texas law prohibits carrying a concealed weapon if there is any alchohol consumption. Some research on my part found the following:

Texas Penal Code Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER

(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed.

So what is intoxicated?

The term "legal limit" is usually applied to DWI cases, and is misused by the media. The term legal limit would seem to imply that there is some magic number, below which you are not intoxicated, and above which you are. That is only partially true.

Texas Penal Code 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

So the law in Texas is not "zero tolerance."


FYI

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CDH
January 9, 2009, 01:47 PM
The term "legal limit" is usually applied to DWI cases, and is misused by the media. The term legal limit would seem to imply that there is some magic number, below which you are not intoxicated, and above which you are. That is only partially true.

Texas Penal Code 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

So the law in Texas is not "zero tolerance."

You prove my point.

The term "legal limit" applies to blood alcohol content, and is used as a benchmark for determining whether a person is "drunk driving" or not, for example.
But TPC 49.01 is intentionally left ambiguous, and any law enforcement officer is able to declare whether he thinks you fit that rule or not.

For example, you might be coming home on New Year's Eve in a good mood as a result of just a couple of drinks, but acting "happy" would be enough for an officer to determine that your are not in "normal use of mental or physical faculties by reason of the introduction of alcohol".
And even if you weren't at the so-called legal limit for driving drunk, just the fact that you weren't acting "normally" in the eyes of the officer would most likely hold up in court with regard to the CCW Permit Code as covered in the handbook.

What that means is that if an officer smells alcohol on your breath, he has the legal right to bust you.
As it was put to us in our CCW class, we should expect "zero tolerance" when it comes to drinking and packing in Texas.

mbt2001
January 9, 2009, 03:30 PM
CDH:

What's to stop a cop there? Why not just say that you had been drinking even if you haven't? So, none of us our safe and precedence means nothing.

CDH
January 9, 2009, 03:56 PM
What's to stop a cop there? Why not just say that you had been drinking even if you haven't? So, none of us our safe and precedence means nothing.

I perhaps overstated with regard to "behaviour" when what I was really trying to get to is how the "legal limit" of alcohol comes into play when you are carrying.

Simply put, the legal limit for drunk driving is a blood alcohol level of .08.
So you may not loose your driving license if you register at only .07, but you will very easily loose your CCW permit if you register at any point above .01 and if you are carrying a loaded weapon.

Put another way: If an officer takes you in at .02 blood alcohol level (for example) and he tells the judge that you were not acting totally normal, you will not lose your driver's license, but you may very well lose your CCW Permit.
That's due to what I think is the intentional ambiguity of the code with regard to CCW carry.

For my part, I am very much aware of how a person's judgement can be affected with only a little alcohol, so I choose to not carry when I'm drinking at all.
If you drive after just a drink or two, you can still be a "sort of" safe driver, but it's been proven that your reflexes are affected enough to where it would take significantly longer to stop in an emergency.
And after a drink or two, we all know that we aren't drunk, but we do loosen up our talk a little and may sometimes say something to someone we wouldn't have said if we had not been drinking. That could lead to harsher words and then to a fight, none of which was intended, and all this can happen far below a "drunken" state.

I'm not arguing law so much as I am common sense, and I'm not an uptight anal type of person about this.
I simply see a hazard in two respects; one being putting a CCW Permit in jeopardy unnecessarily, and the other by making oneself the unintentional instigator of a situation in which we can only come out being the bad guy in court.

Like the public service holiday commercials said: "If you drink, don't drive", and I'll add: "If you drink, don't carry".

My .02 that could save $2 million.

divemedic
January 9, 2009, 04:30 PM
That is not the way it works. The definition for intoxication in 49.01 is the same definition used for DUI. That definition has been well litigated, and the bar is a bit higher than that.

Read Kirsch v Texas, Day v. Texas, and Spencer v Texas. I am sure there are quite a few others. DUI is one of those laws that has been fought over in the courts quite extensively.

Prince Yamato
January 9, 2009, 04:36 PM
while intoxicated

Same as DWI. If you're too drunk to drive, you're too drunk to carry. You can still have drinks and carry, but you cannot be legally drunk and carrying.

I'm sure the teetotalers will be on in a minute to tell me I should never drink and be in possession of a handgun.

calaverasslim
January 9, 2009, 05:04 PM
+1 for CDH. He is down around me and there is very little tolerance by some LEO's. He claims he will not carry when he drinks. Great

I submit. Don't drink at all. Problem solved.....:D

divemedic
January 9, 2009, 05:06 PM
Don't get me wrong- carrying while you are drinking is a bad idea. I am just pointing out that it is not illegal unless you are intoxicated, and that the definition of intoxicated is the same for DUI and for carrying a weapon.

At the same time, even if you are not intoxicated you will have to defend your shoot in a lawsuit, and it is almost a certainty that the opposing attorney will mention that you were drinking.

Sniper X
January 9, 2009, 05:07 PM
MBT, nothing unfortunately. As a fact a buddy of mine got pulled over for spinning his tyres. He was exiting a bar parking lot. He was pulling out inot traffic on a rainy night, and had plenty of room but has a supercharger on his Surburban, I know, a supercharger on a Sub! Anyway, he had had 2 beers in about an hour. He was givin the FST, and a breathalyzer, passed both.

BAC was .04...which is HALF the legal limit. Now I know this guy, and he can PROBABLY be OK at the limit so he was NOT impaired. BUT, the officer saw fit to arrest him for being DUI because he excersized his "right to use his discretion as an officer" and said it was because the guy spun his tyres and that a non DUI person would not have done that.

Of course my buddy won the case in court only after having to spend a ton of money and time on a non case.

mljdeckard
January 10, 2009, 02:16 AM
But this is also why I prefer the way Utah writes the law, it's not illegal to carry in bars, but it is illegal to carry while under the influence, the standard for which is the same as the standard for driving under the influence, .08. Of course, any drinking + a driving incident will be a DUI. I had a neighbor who had to go pick up her kids from her ex on short notice, she had had half of one (3.2 Utah) beer, and she nudged someone else's bumper in traffic. DUI , even though it was unlikely that she would have registered much if anything on a breathalyzer.

jeepmor
January 10, 2009, 02:33 AM
These stories remind me that it's about the money for the government, not actually the publics' safety.

divemedic
January 10, 2009, 08:43 AM
BAC was .04...which is HALF the legal limit. Now I know this guy, and he can PROBABLY be OK at the limit so he was NOT impaired. BUT, the officer saw fit to arrest him for being DUI because he excersized his "right to use his discretion as an officer" and said it was because the guy spun his tyres and that a non DUI person would not have done that.


I smell a possible lawsuit for unlawful arrest there. There is no "discretion" to arrest, the officer must have PC. If he arrests you without PC, it is not a lawful arrest.

Prion
January 10, 2009, 09:27 AM
Unfortunatly some LEO get into the business for the wrong reasons. When I was a kid growing up in a small town there a was kid who always got picked on or beat-up. You all know the poor suckers. I heard from friends who still live there that he is now a cop in town and is exacting his revenge. They say you have to walk on eggshells around this guy. No smiles, no Howdies, just tickets and arrests. Another friend of mine is in no need of money and doesn't need to work but joined the force to uphold the law. He particularly despises men who prey on women and children. He will do what he can to give you the benefit of the doubt if that isn't what you're up to. You never know who it is pulling you over. I use extreme discretion when dealing with LEO's.

punkndisorderly
January 10, 2009, 09:28 AM
Section 46.06 offers this definition of intoxication.

46.06 (b)(1) "Intoxicated" means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.


Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(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.

In the Q/A section of the State's CHL website, there's the question concerning drinking and carrying. The response is that it's not illegal to drink and carry, but is illegal to carry while intoxicated.

So, you could be under the BAC but still be considered intoxicated if the officer believes that you are impaired. One thing to consider is that one may have had only one or two drinks but, when combined with other factors (lack of sleep, prescription drugs, etc) still be considered intoxicated/impaired.

Without the BAC, you would stand a good chance of winning in court, but would likely run up a large legal bill and suffer quite a few hardships in the process. Less likely, but also to be considered, if you ever had to USE your handgun and had been drinking, that would be just one more thing that could show up in the criminal or civil trial. (Your honor, after a night of drinking, Mr XXX shot my client in a fit of drunken rage). Never mind that you weren't legally drunk, or in a rage, and the long night consisted of spending 5 hours listening to liberal ranting from your father in law and only 2 beers.


Me, I don't drink at all when I carry. I rarely drink outside of the house anyway, so it's no hardship for me.

jmorris
January 10, 2009, 09:30 AM
(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


What would be the, normal use of mental or physical faculties, for a lush?

cassandrasdaddy
January 10, 2009, 10:00 AM
the definition of intoxicated is the same for DUI and for carrying a weapon.


fail

Deltaboy
January 10, 2009, 10:45 AM
Personally I follow what I was taught as a young boy. Booze and Guns Never MIX! :D

I don't drink and haven't in over 20 years but If I do I will do it unarmed inside my home.

Bartholomew Roberts
January 10, 2009, 10:54 AM
That is not the way it works. The definition for intoxication in 49.01 is the same definition used for DUI.

Where is the case law or statute showing this?

Also even if 49.01 is the source of the definition of "intoxicated" under 46.035, you still have the "OR" language - meaning that not having normal use of faculties with a BAC of less than .08 is just as intoxicated as having normal use of your faculties with a BAC of greater than .08.

divemedic
January 10, 2009, 11:14 AM
See the case law I posted above. Read Kirsch v Texas, Day v. Texas, and Spencer v Texas. I am sure there are quite a few others.

Bartholomew Roberts
January 10, 2009, 03:34 PM
Read Kirsch v Texas, Day v. Texas, and Spencer v Texas. I am sure there are quite a few others.

Shockingly, it turns out there are quite a few people named Kirsch, Day or Spencer in the state of Texas and more than a few of them have gotten crossways with the state. Maybe you could provide me with a cite to the reporter or a link to the case?

divemedic
January 10, 2009, 06:54 PM
I don't currently have access, but google the name along with the words:

49.01
gun
intoxication
Texas

That is how I found them.

Bartholomew Roberts
January 11, 2009, 11:23 AM
Well, googling only turned up this thread for me; but I did find in statute were it defines intoxicated for handgun carriers the same as 49.01:

Government Code, Chapter 411,Subchapter H, Section 411.171 (6) defined intoxicated "has the meaning assigned by Section 49.01, Penal Code."

So now we only have the "OR" problem, though it does open up a lot of potential in using DUI cases that have litigated this issue as precedent for cases involving licensed carry of a firearm.

TexasRifleman
January 11, 2009, 12:04 PM
It's here:

http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=86096

But as I read this the court found that you CAN apply the definition of intoxicated even if below the .08 limit.

that the trial court properly instructed the jury that it could convict by finding intoxication under the 0.08 definition of intoxication. We affirm.

divemedic
January 12, 2009, 09:26 AM
I never said you couldn't. What I said was that there is not a "zero tolerance" rule. You can drink while carrying, as long as you are not intoxicated. The court ruling says that it could convict by finding intoxication under the 0.08 definition of intoxication, not that you MUST.

The state has to prove that you were impaired by alcohol, not just that you had any alcohol. A very important difference.

slzy
January 12, 2009, 11:04 AM
eternal vigilance is the price of freedom. if you are under the influence of drugs or alcohol,you are putting Yourself in the hands of your enemies.

TexasRifleman
January 12, 2009, 11:37 AM
The state has to prove that you were impaired by alcohol, not just that you had any alcohol. A very important difference.

A difference that might not help. Juries tend to believe cops. Cop says you appeared impaired you're gonna have a hard time proving otherwise.

I just don't see it being worth the risk.

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