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orc4hire wrote:

EricS76 wrote:I would assume she would be fairly knowledgeable about the contents and ramifications of this piece of legislation.

Would you? You're a giddy optimist.


She was the last of four 'joint authors' and signed on 20 days after the legislation was filed by the original author.

orc4hire wrote:Legislators, of course, being famously knowledgeable about the contents and remifications of the legislation they vote for.

orc4hire wrote:

EricS76 wrote:It seems to me that some people want to make this new law complicated, or form it somehow to fit their needs. When you strip it all down, it's very simple.

We should all be able to agree that the law revolves around traveling. Ask yourself "am I traveling when I go to the grocery store 10 blocks from my house?" No, I'm not traveling. "Am I traveling when I take my kids to football practice?" No, I'm not traveling. We all know when we're traveling and when we are not. Some people wish to stretch the law to cover more things, and yes, it may be possible to get away with it. But you know when you're traveling and when you are not. If you feel the need to carry a handgun in your vehicle all the time, you'd be much better advised to get a CHL and stop argueing this law or trying to stretch it to suit your needs.

Yes, that is where it gets complicated. When people try to define traveling, as it applies to this law, as something other than how the law itself defines it.

By the way, what makes you think I DON'T have a CHL?

orc4hire wrote:

EricS76 wrote: Yes, the change in the law shifts the burden of proof from the defense to the prosecution. In turn that will make it harder for the prosecution to get a conviction. But the fact remains that if the prosecution can disprove the presumption that a person was traveling, there will most likely be a conviction.

Go back up and check my link to glock talk. There is a lengthy discussion and a person who said many times the law said he could carry all the time in his car and be fine. He then contacted his representative, and he/she told him exactly what I had said before.

I read it and wasn't impressed. There's a lot of nonsense about how the prosecution can challenge the presumption by introducing evidence of groceries and travel times and whatnot. But the law is explicit that to challenge the presumption the prosecutor has to disprove those facts that give rise to the presumption, and those facts are the ones laid out by the new law.

I have not seen anyone in that thread on Glocktalk address that. And you avoided addressing it just now.


To clarify, yes, certainly the prosecution can challenge the presumption. I don't recall anyone saying they couldn't. But I HAVE seen a lot of people make . . . counter-factual statements about HOW they can disprove that.

The law is explicit on this. To break the presumption the prosecutor must disprove the facts from which the presumption arises. _No other facts, specifically those to do with travel time, or groceries, are relevant_. THESE are the relevant facts, as laid out clearly in the new law:

(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.

Can those facts be challenged? Certainly. I see most challenges coming from (5). (And maybe (2) and (3), but in those cases a misdemeanor weapons charge is probably just the cherry on top.) But if you meet those criteria there is no basis for a SUCCESSFUL challenge.

That's what the law says. If you believe it says otherwise I would be interested in hearing specifics, not vague hints that 'the presumption can be disproved.'

orc4hire wrote:Eric, is it your position that the following section of the law doesn't say what it seems to say?

(b) When this code or another penal law establishes a presumption in favor of the defendant with respect to any fact, it has the following consequences:
(1) if there is sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted to the jury, the court shall charge the jury, in terms of the presumption, that:
(A) the presumption applies unless the state proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist;
(B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the presumed fact does not exist, the state must prove beyond a reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to whether the presumed fact exists, the presumption applies and the jury must consider the presumed fact to exist.

Subsection B seems to be the critical one. To repeat:

(B) if the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists;

That seems to clearly state that the presumption cannot be challenged successfully by questioning how far the person was driving, or where, or for how long. To successfully prosecute, the prosecutor must disprove the facts giving rise to the presumption. That is:

(i) For purposes of Subsection (b)(3), a person is presumed
to be traveling if the person is:
(1) in a private motor vehicle;
(2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(3) not otherwise prohibited by law from possessing a firearm;
(4) not a member of a criminal street gang, as defined by Section 71.01; and
(5) not carrying a handgun in plain view.

Renegade wrote:

EricS76 wrote:

dws1117 wrote:It is amazing how many people are under the impression that this new law allows them to simply carry a gun in the car. I have heard several that intend to do just that. I've tried to tell them that it isn't as clear cut as it appears.

It is amazing. Check out this thread:
http://glocktalk.com/showthread.php?s=& ... genumber=1

The number of people on GlockTalk that do not know what they are talking about, is higher than any other place in the known universe. I can top that one.

There is a guy in this thread who not only thinks you can ignore 30.06 verbal notice, but if the police are called, the property owner will be investigated and tagged with a fine for giving 30.06 verbal. Says he had it done to a property owner.

http://glocktalk.com/showthread.php?s=& ... genumber=2

dws1117 wrote:It is amazing how many people are under the impression that this new law allows them to simply carry a gun in the car. I have heard several that intend to do just that. I've tried to tell them that it isn't as clear cut as it appears.