TexasCHLforum.com

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.

(This topic holds some interest to me because many years ago, a friend had been drinking while underage. When the car was pulled over, the driver - himself barely legal drinking age - blew something like 0.01, barely a blip, but his underage passengers - including my buddy - refused to take the breathalyzer. Cop was PO'd, but with no actual proof, all he did was cuss and threaten.

If they'd taken the breathalyzer test, they'd have been arrested on the spot, since it would have provided proof of their underage drinking.

Fast forward to the present . . . with no arrest record, my friend has been an airline pilot for a couple of decades now. )

srothstein wrote: For any officer to arrest you for unlawfully carrying by a CHL, based on the carrying while intoxicated law, he would need to be able to show either

1. a factual alcohol concentration (blood, urine, or breath test) OR
2. A. that you were not in possession of the normal use of physical or mental faculties AND
B. that this lack of use was due to the introduction of an intoxicant.

The officer can show this by giving a field sobriety test or by simple testimony of your actions.

There is an "implied consent" law which applies to driving a motor vehicle, i.e., by the act of driving, you consent to being tested for being drunk.

But AFAIK, there is no such "implied consent" law for walking down the street, sitting in a restaurant, etc.

So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, and second, is there any case law that says declining to submit to a test that is NOT required by law is evidence of guilt?

(To re-iterate, I do NOT believe actual drunks ought to drive cars, carry guns, fly airplanes, or do anything else that endangers others. I'm just curious about what the LAW says you MUST do in the way of taking a drunk test if you're not driving a car.)

I neither drive nor carry when drunk - it's been a long, LONG time since I've been anywhere NEAR 0.08% BAC - and I don't want anyone else to do so, either. (As for people caught with 3x or 4x the legal limit, that could never happen to me, as I've no doubt I'd be unconscious.)

I see nothing wrong with having a beer with a steak dinner or something of the sort - most guys, BAC would barely register.

But in my CHL classes, I don't remember hearing anything about "implied consent" when carrying like there is for driving a car.

So unless they were driving a car, why would a CHL holder consent to a blood alcohol, breathalyzer, or field sobriety test?

KBCraig wrote: . . . Yes, that's my point: the individual licensee inside will have its own "premises description" within the license, which might or might not extend to a portion of the larger premises. . . . Whatever those "licensed premises" limits are where drinking is allowed, are the same boundaries that CHLs must observe. Kevin

Hmmm . . . so say there's a bar in a restaurant, and the bar makes 51% of its revenue from the sale of alcohol for on-premesis consumption, then it's off-limits.

BUT if the "premesis description" includes the whole building, not just the bar area, and the majority is the restaruant, then wouldn't the "51%" sale requirement apply to the whole premesis? That is, even if the bar itself makes over 51% of its sales on booze, wouldn't combining the premesis description with a big restaurant serve to "dilute" the booze percentage?

FWIW, a couple of years ago, some of the Applebee's restaurants in the San Antonio area posted 30.06 signs . . . a letter writing campaign that actually went national (!) made Applebee's corporate spank the management of San Antonio's restaurants, who then came out with a statement effectively saying that law-abiding CHL holders were welcome with their concealed handguns. Since Applebee's, much like Chili's, has a bar, I think it's safe to conclude that establishments that are primarily restaurants, rather than watering holes, are OK.

(I don't know if you're familiar with Austin, but, conversely, I'd say the great majority of the establishments along Sixth Street are off limits.)