TexasCHLforum.com

kauboy wrote:

txinvestigator wrote:He told you it is an administrative case, and the TAC and the TABC laws specify what adminstrative actions can be taken. That includes "punishment" even tough they are not penal code crimes.

I know what he told me, but after looking, I still can't find anything in the Government Code or Alcoholic Beverage Code that talks about a penalty for not displaying a required sign.
I really don't mean to sound like a jerk about this. I just want to see it in the Code so I have something to point to if a bar doesn't post it when they should. I don't like the idea that I have to magically know whether or not the Alcoholic Beverage Commission has determined whether or not they meet "51%".

Like many laws, it's vague and open to creative interpretation.

Some cities (like McKinney, where I live) don't allow 51% type establishments. They allow restaurants that serve alcohol but not "bars" so the establishment has to sell a lot of food. But there are certain establishments that are probably cooking the books to remain in compliance, because I know of one "sports bar" type of place that sells very little food compared to their massive alcohol sales and they are still in business. So if the TABC audits them and finds that they are making 51% of their sales in alcohol is the establishment now required to post a 51% sign, or do they get shut down or what? What if you were carrying in there when they were making 51% of their sales in alcohol even though they weren't supposed to be (and weren't posted)? Too many what if's.

It would be easier if the code said that CHL holders can't carry if the place is 51% posted and place the burden on the establishment to post the sign, just like the 30.06 signs work. Leaving it up to the CHL holder to determine if a place is 51% or not is ludicrous because the CHL holder has no way of knowing that.

txinvestigator wrote:

Odin wrote:

srothstein wrote:And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanting from the person (not the clothes).

What case law is this information derived from? I don't recall reading a specific case that established those parameters.

Thats the same you learned in the police academy Odin. There are others also.

We never were taught about a particular case law relating to this subject that spelled out those things, that's why I was asking. I know what the reasonable suspicion and probable cause factors are for intoxication, but if there is a case law that spells something out (like Terry Vs Ohio for example) then it's open to less objection from the defense.

I can see a defense attorney picking apart those factors and making excuses as to why his client showed those symptoms but wasn't intoxicated. I testified in a DWI case in Nov where the defendant not only was clearly drunk and failed all 3 SFST's, he blew a 0.15 and a 0.16. It ended in a mistrial because one juror wouldn't vote to convict. The case is being re-tried in Jan and we'll do the whole thing again (the guy is a 2nd time DWI). The defense subpoenaed everyone from the officer who waited on the tow truck (no contact with the defendant on the scene) to the guy from the company who made the Intoxilyzer.

It was a defense of bull but the defense certainly did pick apart everything possible. The judge was less lenient with the defense in areas where there was established case law. That's why I was wondering if this situation (defining intoxication) was defined in case law. Having a case law on your side is better than just a "based on my training and experience" statement from an officer because it shows that you followed established and accepted practices when making your determination.

srothstein wrote:And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanting from the person (not the clothes).

What case law is this information derived from? I don't recall reading a specific case that established those parameters.

kauboy wrote:Huh... I just remembered that my folks did this for me for an early Christmas present so I could go hunting. I wasn't old enough to buy it, so they did. Was that legal? They didn't use my info or anything.

If the laws were as clear as they should be you wouldn't have ask that question.

txinvestigator wrote:

Odin wrote: I'd like the "intoxicated" and the "travelling" parts of the weapons statues to be cleared up to the point that 10 random (literate) people could read the code and a majority of those people would come to the same (and correct) concluson about what the law was specifically saying. Right now, we don't have that in either area (and probably other areas that I'm not aware of). ]

I know a lot more than 10 CHL holders and they all seem to understand, but I believe I know from where your propensity to worry about these things comes.

I believe the sheer number of questions posted here by CHL holders (search the "travelling" subject) asking questions about both intoxication and travelling indicates that there is a fair amount of ambiguity in those areas of the law.

My "propensity to worry about these things" is more of a fundamental dislike of needless, or needlessly vague, laws. It's not something that I worry about ever having to deal with myself because I don't see myself ever being on the wrong end of a police contact where I would end up getting charged with anything. But that doesn't mean I don't care that the law is poorly worded and will ensnare some other person that might have been spared the expense if the statutes were more clearly defined.

I don't think we need any laws regarding the carry of firearms for free citizens. If you want to carry (open or concelaed) then I think it should be your choice, no permits required. Prosecute criminals for committing criminal acts, leave law abiding citizens alone. Don't punish or unnecessarily burden the law abiding in an attempt to control crime - control criminals and you will control crime. It's a concept of personal responsibility that few people seem to be able to grasp or accept these days.

KBCraig wrote:Keep ranting, Odin.

The answer that is obvious to almost everyone is not to "fix" the laws, but to eliminate 99% of them. At least to start with... after that, we can go back and see which (if any) of the remaining laws are really needed.

Kevin

I agree completely. Probably 75% or more of our laws are completely needless and serve only to employ more lawyers.

txinvestigator wrote:

Odin wrote: a person with average intelligence should be able to read the penal code in plain English and be able to comprehend it. .

I don't seem to have a problem with that. Anyone can overanalyze anything and make it sound complicated.

The bottom line is, acting stupid, drunk or not, is likely to invite the attention of the police.

Its amazing I have made it 45 years and have not had a problem with the police with this issue, and I carry ALL of the time.

Not only is it in fact complicated, but police, prosecutors and judges are called upon to analyze it more times than necessary. The Travis Co DA has publicaly stated that he will continue to prosecute a portion of the law ("travelling") in a manner not consistent with the way the law is now written and he wants to let juries decide to throw their interpretation on the matter rather than following the law as it is written. The "CHL/intoxication" portion of the code is written in a similarly vague fashion.

I carry often and have never had a problem with concealed carry and the police either (and I do drink in moderation sometimes), but that doesn't mean I think the law is clear on the matter. We have differing opinions on this subject. I'd like the "intoxicated" and the "travelling" parts of the weapons statues to be cleared up to the point that 10 random (literate) people could read the code and a majority of those people would come to the same (and correct) concluson about what the law was specifically saying. Right now, we don't have that in either area (and probably other areas that I'm not aware of).

There was a time, not so long ago actually, in this young country of ours when the laws were clear to all who could read them. Somehow, we have created a nation of hundreds of thousands of laws, each intertwined with the other and each creating more gray areas, loopholes, and exceptions than the last. It doesn't have to be that way. And let's not even get started on the IRS and our tax code. Lawyers have created quite a niche for themselves by complicating things that need not be complicated, and the people of this country are paying for those unnecessary complications every day whether they know it or not. Personal responsibility is no longer required, or even expected, of people, and the government is expected to have all of the answers and take care of everything. I don't have a handy solution for everything, just going off on a little rant.

seamusTX wrote:

txinvestigator wrote:Having a BAC under .08% is not a walk and not a pass in the sense that you state. A person CAN be convicted of DWI with a BAC below .08%. The state simply needs to show that the person met the other definition.

I know that and should have stated it more clearly.

In the scenario that is being tossed around, someone who had one beer and smells like beer is going to have a BAC well below 0.08 and isn't going to show signs of being drunk such as staggering or slurred speech. I just can't see that being prosecuted successfully.

- Jim

I'm sure it wouldn't get a conviction, but someone would be arrested and spend a lot of time and money before the case was done. Which isn't a big deal unless you're the one who gets arrested. I've never been charged with a crime, and I don't forsee it ever happening, but I'd like our laws to narrow the chances of these things happening before they happen instead of after several cases are taken to court.

If possible, our penal code should eliminate possibilites like that with clear, concise, well defined laws that don't leave too much room for creative interpretation.

HankB wrote:

seamusTX wrote:

HankB wrote:So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, ...

It is illegal to be intoxicated in public, whether in a bar or walking down the street. If a LEO has probable cause to believe someone is intoxicated (because of staggering, slurred speech, etc.), he can investigate further.

Failing to cooperate will result in an arrest for something, probably 99% of the time.

- Jim

Co-operating may give him actual evidence, not co-operating will tick him off and he may arrest you out of sheer cussedness . . . but in court, there won't be anything beyond "I figured he looked drunk/guilty/whatever, but since he wasn't driving he didn't take a test he wasn't required by law to take, he just kept telling me he wanted his lawyer."

If the officer is actually a crooked cop who'll perjure himself or plant something you've got problems no matter what, but otherwise a good lawyer is very likely to get things tossed in the absence of hard evidence . . . if it even gets as far as court.

You may not beat the ride, but you likely WILL beat the rap.

More than one person has gone to jail for POP. And it's not that the officer is "crooked". Sometimes the officer uses his discretionary leeway to give someone a break and sometimes the officer uses his discretionary leeway to reward you for pissing him off.

And a "good" lawyer can probably get you off even if there is hard evidence. OJ Simpson left his blood at a murder scene and the victim's blood was in his vehicle and he skated.

seamusTX wrote:

Odin wrote:True, but if the officer doesn't intend on arresting you for DWI, only for carrying under CHL while intoxicated, the officer is not obliged to offer you the chance to take a BAC test.

As I said, it's possible.

But I doubt that an officer has the discretion to stop you for suspected drunk driving, then fail to arrest you when he determines that you are drunk.

That kind of thing used to happen all the time (20 or so years ago). Then the drunk would cause a disaster and the police would be blamed for not stopping him earlier.

The officer could make the stop for a burned out tail light and smell alcohol on your breath. The officer could, after observing your actions and evaluating your reactions to his questions, determine that you are not too intoxicated to operate a vehicle but still choose to take you for PI. Your lawyer could probably get you a pass on the conviction, but it wouldn't be cheap or fast.

seamusTX wrote: Getting hit with drunk driving is way worse than a class C misdemeanor that will probably be dismissed after the judge lectures you. You can lose your driver license, lose other professional licenses, get fired, and even lose custody of your children if you're divorced. If a LEO wants to put the heat on you, that's a way to do it.

Odin wrote:... I just have a problem with laws not being as clear, concise, and universally applied as possible.

You and me both. A citizen of ordinary intelligence and education should be able to read the plain text of the law and know what is illegal, or not. It aint' that way, hasn't been for over 100 years.

- Jim

But the "Intoxicated while CHL" charge isn't a Class C like a basic PI is, it's enhanced if you're CHL when you get the PI.

You need a college degree to be a lawyer, common sense is obviously not required. But I agree, a person with average intelligence should be able to read the penal code in plain English and be able to comprehend it. But that would put about half of the lawyers out of a job.

seamusTX wrote:

Odin wrote:I believe that staggering or slurred speech would be reasonable suspicion, not probable cause. Reasonable suspicion would allow the officer to investigate further.

You're right, of course.

Odin wrote:I do worry that some people who are not intoxicated (but have had a drink or two) could possibly encounter a police officer who is unfriendly towards CHL holders and decides to make an arrest based on something other than the intent of the law. A person could have one beer and be stopped for a traffic offense and the officer smells the beer.

It is a potential problem.

If the person is driving, they can take a breath test and pass (BAC under 0.08). I can't see the DA's office trying to press an intoxication charge when DWI wouldn't stick and the person was not otherwise doing something illegal.

- Jim

True, but if the officer doesn't intend on arresting you for DWI, only for carrying under CHL while intoxicated, the officer is not obliged to offer you the chance to take a BAC test.

I'm not thinking that this sort of thing will happen often, I just have a problem with laws not being as clear, concise, and universally applied as possible. Police officers have the discretion to arrest for a misdemeanor offense or take other law enforcement action such as a warning, etc. But when the offense is enhanced (in this case from a Mis C PI) to something that will cause you to lose your license then I think the law should be worded, defined, and applied as clearly and evenly as possible to avoid even rare instances of misapplication [abbreviated profanity deleted] the law.

As I mentioned before, it's much like the "travelling" clause of the law, which is IMO left open to too much interpretation. The DA down in San FranAustin has already stated that he will chose to enforce the law contrary to the written law because, probably because he's a leftist who doesn't like guns. The people in Travis Co shouldn't be punished for his political beliefs, and the law shoule leave no room for political activism on the part of police or prosecutors.

seamusTX wrote:

HankB wrote:So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, ...

It is illegal to be intoxicated in public, whether in a bar or walking down the street. If a LEO has probable cause to believe someone is intoxicated (because of staggering, slurred speech, etc.), he can investigate further.

Failing to cooperate will result in an arrest for something, probably 99% of the time.

- Jim

I believe that staggering or slurred speech would be reasonable suspicion, not probable cause. Reasonable suspicion would allow the officer to investigate further.

You're right about failure to comply.

I don't condone intoxicated riving or carrying, but I do worry that some people who are not intoxicated (but have had a drink or two) could possibly encounter a police officer who is unfriendly towards CHL holders and decides to make an arrest based on something other than the intent of the law. A person could have one beer and be stopped for a traffic offense and the officer smells the beer. If the driver has a less than ideal attitude about the traffic stop (some people actually take traffic stops personally) or does/says something to annoy the officer and the driver admits to having one beer and presents his DL and CHL then the officer could make an arrest for carrying while intoxicated. People go to jail for POP all the time when they could have avoided it.

That's the main reason I would like to see a clearly defined and universally applicable set of parameters applied to the term "intoxicated" in the Texas penal code. When the rules are clear, concise, and universally applied then everyone benefits.

kauboy wrote:

Odin wrote:It's not unlike the "travelling" clause, which was recently amended but still is in contention from palce to place regarding enforcement. It would be nice to have these things actually cleared up as much as possible in the penal code.

Uh oh, traveling, my old nemesis. Upon further inspection of the traveling thing, the problem arises when you look at the PC's definition of "presumption". It only refers to a jury being given instructions base on the presumption, which implies that it can only be settled in court even if you meet all of the criteria in the law. It really needs to be re-written to properly reflect the author's intent.

I agree, but I'm not holding my breath for either of these things to be clarified in the code.

txinvestigator wrote:

Odin wrote:

Mike1951 wrote:What bothers me is that anyone considers 2 or 3 beers acceptable.

For me, the decision is already made since I won't drive after drinking. If I'm anywhere that I would be carrying, I would have to have driven to get there.

But I can see an argument for having ONE beer with food or ONE drink with dinner.

But I don't want anyone, no matter how well they think they can handle themselves, driving or carrying after two or more drinks or beers!

If you feel the need for two beers, leave the gun at home and let someone else drive.

I'm not saying that I condone drinking 2 beers and drive or carry, but I will say that each individual person is affected by alcohol differently. I can drink 2 beers and feel absolutely no effect of the alcohol. I'm not saying that the alcohol doesn't affect me, but it's not a noticeable effect. I have a friend who would be acting loopy after 2 beers.

http://www.ou.edu/oupd/bac.htm
The figures on the BAC calculator obviously will vary somewhat for different people, but they are a close apporximation.

A person my size would have an approximate BAC of 0.02 after drinking 2 beers in 1 hour. It would take 5 beers in one hour to put me at the 0.08 BAC standard for DUI. I would never drink 5 beers in 1 hour and drive (I'd never drink 5 beers in 1 hour period). If I went out over a period of 4 hours it would take 8 beers in that 4 hour period to put me at the 0.08 BAC. 8 beers is a lot of beer.

I think the BAC for DUI could stand to be lower, and I think the BAC for concealed carry should match that of a driver.

You realize the the BAC for drivers is not a pass/fail for DWI, right. it is a "presumed level on intoxication". A person can easily be convicted on less than .08% for DWI if the state proves that "you are not in the normal use of your mental or physical faculties by the reason of the introduction of alcohol, a controlled substance or drug, or any combination into the body."

The just is to "presume" that the element of intoxication is met if the person is .08% or higher. Below that, the other definition must be proven.

If .08% was the minimum limit a person could be charged or convicted, then a person who did not drink but was high on drugs could NEVER be prosecuted.

Yes, I'm aware of that. I'm aware of how the law is applied, but I'm also aware that the law may be applied quite differently case by case and I'd prefer that the law was more clearly defined.

It's not unlike the "travelling" clause, which was recently amended but still is in contention from palce to place regarding enforcement. It would be nice to have these things actually cleared up as much as possible in the penal code.

txinvestigator wrote:

Odin wrote:I live in McKinney. The city of McKinney doesn't allow "bars" in the city, meaning no establishment can derive 51% or more of their income from alcohol sales for on premises consumption. McKinney does allow businesses to allow on premises consumption, and even has places that I would consider "bars" (McKinney Tavern, Hank's Texas grill, etc.) but they sell more food than booze on the books so they aren't technically bars in the 51% sense.

I know that there are several other area cities that don't allow 51% "bars". I assume it's safe to carry in any establishment in those cities unless posted with a 30.06 sign.

I'm still not clear on the whole "carrying while intoxicated" part of the law. The way intoxicated is defined in the law I would read that if you have consumed any amount of alcohol that you could be considered intoxicated at the discretion of a police officer. In my opinion, that area of the law leaves a big gray area that could result in someone getting hit witha carrying while intoxicated deal even though they only had 1 or 2 beers. I think that part should be cleared up in the law with a BAC requirement or something.

Actually he must have PC to believe that you are not in the normal use of your mental or physical faculties by the reason of the introduction of alcohol, a controlled substance or drug, or any combination into the body.

Remember your requirements for Public Intoxication from the academy? They hold true for Carrying while Intoxicated.

Intoxicated means "not having the normal use of mental or physical faculties" due to, in the case of this discussion, drinking alcohol. But "normal use" is not defined, so this could be argued endlessly in court. I could probably drink to the point of being 0.08 BAC and then drive "normally". I wouldn't have as sharp of reflexes or coordinated motor skills, but I could certainly keep it on the road. So I could argue that I was driving "normally". Which is why the law specifies a BAC limit, so that regardless of the defendant's protests of how normally he was driving the offense is clearly established.

An officer could make an arrest based on what he believes to be PC, and the suspect has no recourse. In a DWI the suspect is afforded the chance to take a BAC test. By the time the case reaches court the "evidence" of intoxication, or lack thereof, is long gone, making it a defendant's word vs. officer's word case.

I don't think that police officers are out there looking to lock people up for no good reason, but I do know that a great many police officers are either not clear or misinformed on a variety of laws. And understandably so, the penal code is not exactly light reading, and many parts leave the law open to interpretation.

So one officer may have a personal policy of taking anyone who smells like an alcoholic beverage if that person is carrying. The officer can easily testify that he observed certain things that would support PC for a PI arrest. The defendant has no recourse. I'd just like to see an established BAC so that an arrested subject could, if they so choose, take a BAC test. It would also help the prosecution in cases where the defendant took the BAC test and failed it.

Imagine if there was no established BAC for DWI and each case was argued out in court with no BAC test results. The defense attorneys would love it, and lots of people would go free. It's much easier for the state to establish guilt when there are clearly defined and universally recognizable parameters defining an offense.