Restaurants with bars. (Chili's etc)

[kauboy]

But life is full of choices, compromises, and calculated risks.

Unfortunately, your calculated risk can affect more than just yourself. That is why the law steps in to protect the public that you are interacting with. I do agree that a standard should be put in place, but I don't object to the current version being in place as opposed to no mention at all.

[Mike1951]

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.

[Odin]

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.

[HankB]

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?

[Odin]

The way the law is curently written a police officer can charge you with carrying while "intoxicated" even if you have had nothing to drink, and there is no BAC test that the police are required to allow you to take to prove your innocence. Even if you were arrested and you requested to take a breathalyzer test, the police are under no obligation to accomodate your request. It is completely up to the discretion of the officer, based on the officer's observations, to decide if a person is "intoxicated". The officer does not need to give a person any "tests" to make an arrest for intoxication. It will be your word against the officer's word in court. Good luck with that one if you plan on disputing the charge. In my opinion, that leaves too much gray area for a serious offense that would cost you your license.

I think there should be an established BAC for carrying a firearm that matches a "level 1" BAC offense for driving (lower than the current 0.08), and a "level 2" BAC (maybe back to the old 0.1 for this level) for driving at a higher level of intoxication and carries increased penalties and restrictions on future driving.

[txinvestigator]

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.

[txinvestigator]

The way the law is curently written a police officer can charge you with carrying while "intoxicated" even if you have had nothing to drink, and there is no BAC test that the police are required to allow you to take to prove your innocence. Even if you were arrested and you requested to take a breathalyzer test, the police are under no obligation to accomodate your request. It is completely up to the discretion of the officer, based on the officer's observations, to decide if a person is "intoxicated". The officer does not need to give a person any "tests" to make an arrest for intoxication. It will be your word against the officer's word in court. Good luck with that one if you plan on disputing the charge. In my opinion, that leaves too much gray area for a serious offense that would cost you your license.

I think there should be an established BAC for carrying a firearm that matches a "level 1" BAC offense for driving (lower than the current 0.08), and a "level 2" BAC (maybe back to the old 0.1 for this level) for driving at a higher level of intoxication and carries increased penalties and restrictions on future driving.

Again, the officer must be able to articulate his probable cause to believe 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.


People are getting too worked up over this. You don't wear a sign that says "CHL HOLDER, ARMED AND DANGEROUS" So having a beer with your steak while carrying will not draw anymore attention than anyone else drinking a beer with his/her steak.

The danger is if you use your weapon and the investigating officer observes that you had been drinking. Your actions will certainly come under more scrutiny in that case. If the officer believes you to be intoxicated then, they can add the Carrying while Intoxicated charge.

If you are arrested for Public Intoxication, and you are carrying, that Class C now becomes a Class A.

[txinvestigator]

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.

[Odin]

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.

[Odin]

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.

[kauboy]

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.

[Odin]

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.

[srothstein]

I was asked by a friend to respond to this thread because I currently work for TABC. This was in response to the original question about bars within restaurants, but seeing how the thread has changed slightly, I will try to respond to both main questions.

To get the correct answer on the bar versus restaurant question, I went to our licensing and enforcement divisions to verify the information. I was told that there are two different things to consider - whether or not it is a hotel or a separate building.

If the permitted premise is a hotel, all bets are off and almost anything can happen. The hotel rules have gotten fairly complex and allow things that are not allowed elsewhere. In this case, it is possible for a hotel to have a restaurant that serves drinks that is not posted as 51 and a bar that is posted as 51% if it is in a separate room. This is true because almost all hotels set up the food and bar as separate businesses, and the room service and mini-bars make it even more confusing.

But looking at the places like Chili's, it is much simpler to determine. Assume a restaurant is in one building and has a bar as part of the restaurant. It is possible for the bar permit to draw off the food portion of the building for a separate permit. This can only happen if the two businesses are not related however, such as a restaurant subcontracting out the bar. If it is one owner, then they can only get one permit.

The real trick is if the bar is separately permitted, then it cannot serve or sell any food in the restaurant. For the restaurant to serve would require it to have a separate permit. And if the restaurant does have a separate permit, it would need a separate bar with a separate liquor service and all, because the bar cannot sell drinks to the restaurant for resale.

The last part is because the state of Texas has what is called a three tier system for alcohol and it strictly separates the manufacturer, wholesaler, and retailer tiers. A person or business who has a retail on-premise permit cannot sell for resale and cannot sell off their premises. No business can have both a wholesaler permit and a retail on-premise permit.

Thus, if it is not a hotel, it is generally safe to assume that if it is a place like Chili's which sells food and alcohol, the bar is not going to be legally a 51% place for you to worry about. If the bar is in a hotel, it should be posted by the doors to the bar if they are going to have the 51% rule. If it is not a separate room, it is safe to carry there since it would be harder for anyone, including the police, to determine exactly where the premises are for the rule to apply to.

In answer to the second main question, the law is clear on what constitutes carrying while intoxicated. In Chapter 46, it says that it is illegal to carry under the authority of the CHL while the person is intoxicated. There is no general definition of intoxicated in the Penal Code and none in the chapter on weapons. The general rules of construction for the penal code would say that if it is in general use, you could use the general definition, or if it is defined elsewhere in a manner that is not in conflict with the general definition, to use that definition.

Chapter 49 is in the same title as chapter 46 and has a definition of intoxicated. Since this definition is more strict than the general definition (drunk) but not in true conflict with it, the court would use it as a guideline. Thus, intoxicated means to have an alcohol concentration of .08 or higher OR to not have the normal use of their mental or physical faculties due to the introduction of some intoxicant (alcohol, drug, illegal substance, or any other substance, which could include legal and normally used drugs).

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. It is important to note that the law does not require the use or possession of YOUR faculties, but of normal ones. This is much easier, since all I need to do then is show that you were not acting in a socially acceptable and normal fashion. Then I need to show that this is because of the intoxicant. One great example of this was the arrest of a woman in a bar for P.I. because she was standing on the table top, taking her blouse and bra off, and screaming that she would have sex with every (not any but every) man in the bar. This was probable cause that she was intoxicated since this is not considered to be normal use of mental faculties. Her defense could be that it was not due to the alcohol but due to her being manic. I have yet to hear anyone admit to behavior like this in court as being normal or caused by anything other than intoxicants though.

So, it is not illegal to carry after having one or two drinks, unless you lose possession of what faculties society deems to be normal very easily.

[jbirds1210]

Stephan-
Thank you for the input!

[Mike1951]

That answer oughta be a sticky!!