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Jason,

The problem he was pointing out is that you were taught the Utah Penal Code. This law does not apply in Texas. A person with a Utah permit living in Texas will never learn the Texas Penal Code unless he wants to study it on his own. This is a hard way to learn and understand any law.

For example, the section you posted says that under the influence has a meaning from a different section of the law. Is their definition of under the influence the same as ours? I know the .08 BAC will be the same (thanks to interference from the feds), but what about when I don't give a breath test to you? What is the standard used without the BAC? I don't know Utah law so it could be the exact same, but it could be different.

As one example of a major difference in Utah concealed carry laws and Texas laws, Utah allows college students with a license to carry in the classrooms. Texas most certainly does not allow this. This simple difference on where you can carry can be a very costly mistake.

I have no problem with anyone in Texas getting just a Utah license, but I strongly recommend that they take a Texas CHL class anyway, if only to learn the peculiarities and quirks of Texas law.

Oldgringo wrote:Isn't refusal to take an in situ sobriety test an automatic "something or other"? The automatic "something or other" leads to an automatic need for a lawyer.

Yes and no. The SCOTUS has ruled in the past that remaining silent cannot be used against you, which is the basic principle here. But it will almost always result in the officer assuming you were intoxicated and booking you for whatever charge he was investigating at the time. It also means he has the least evidence possible (assuming you were also smart enough to be polite when you refused, shut up, and did as little walking or standing in his camera view as possible).

I will give a brief lesson in police procedure on this, so everyone will know how it will play out in general. For the lawyers and police amongst us, note that this is not the legal wording and is general rules and explanation. I am not going to go in-depth into any part.

If an officer stops a person for suspected intoxication, he looks for certain signs that should be there. As a general rule, the officer needs three of four signs (glassy eyes, slurred speech, unsteady on his feet, and an odor of alcohol emitting from the person). This is all the officer needs for probable cause to arrest. The officer MAY decide to offer a field sobriety test. This is not necessary to offer and not required to submit to. The standardized field sobriety test (SFST) consists of three events (the one leg stand, walk and turn, and horizontal gaze nystagmus) that have been laboratory tested and certified in court for predication of a BAC. In general, officers will let anyone go who passes these tests and book anyone who does not pass (either fails or refuses). In addition to the SFST, for certain offenses in chapter 49 of the Penal Code that involve vehicle use (boat, plane, auto, etc.) the officer may offer a blood or breath test. for these offenses, refusal of the tests results in an automatic suspension of your DL (with a hearing if requested). Unless the offense is one of these, the officer will not normally offer the blood or breath test. There is no law requiring it and some rules that might forbid it (machine use rules - the cities and counties do not own the machines). Incidentally, the blood or breath test choice is the officer's and not the suspect's and he only has to ask once. A suspect can request a blood test at his own expense, but it must be taken within two hours at the same location, so you really need to know a traveling nurse that is on call and will come do it. Effectively, this right to your own test is useless.

All of these rules are general since the definition of intoxication includes things other than alcohol. I have booked people for DWI without the breath test or after blowing a .000 on the test because I felt they were on drugs. I have never offered a blood or breath test to someone for public intoxication.

So, this is how this would play out, in my opinion, if you were drinking in a bar while carrying. The police somehow find out and come by. You have had one twelve ounce beer, and the officer wants to push the limit on carrying while intoxicated. He will usually not see the signs he needs, but might smell the required alcohol on you. If he is strictly honest, he will warn you that you are pushing the limits and ask you to leave the bar. You agree and nothing happens. You refuse and get arrested for criminal trespass.

Of, the officer is willing to say you were stumbling, had slurred speech, and he smelled the alcohol. Maybe you really are closer to the limit than you though (alcohol does affect judgment after all). The officer gets you outside where it is a little quieter and asks you to perform an SFST. You pass and he asks you to leave (see scene above). He would probably try to get you a ride instead of letting you drive (and I suggest you take it, your BAC is probably still climbing as you digest what you were just drinking - you might be under the line now and over it in ten minutes). You refuse or fail, and the officer is going to book you for carrying while intoxicated.

Here is the good news. If you refused, the only evidence is the officer's initial observations. A good lawyer will probably get the slurred speech and glassy eyes thrown out as the officer admits the bar was dark and noisy. With no other evidence, there is a very good chance you will win the case and it only will cost you one night in jail, a couple hundred dollars for the bail fee, and a few hundred to couple thousand for the lawyer.

The bad news is if the SFST is done, there is a good chance you will be convicted. Normally, the SFST is done on tape and the jury will hear exactly how you were talking and see exactly how bad your balance was. Even without the tape, the officer can now testify from his notes on exactly what you did and what the lab experiments predict your sobriety state to have been. I, and most of the officers I know and worked with in San Antonio or TABC have better court records for SFST only cases than breathalyzer machine cases.

In no case I have seen would you be offered a breathalyzer test for public intoxication or carrying while intoxicated without the driving component. It is the officer's judgment that gets you booked, and the jury's judgment that convicts you. A good lawyer can help with the second, but the first is hard to beat.

So, I know it is not illegal, but I think it is very good advice to not drink and carry or drive. You can probably drink a little and drive and get away with it easier than drinking a little and carrying, even though the laws are the same for what is intoxication.