Restaurants with bars. (Chili's etc)

[txinvestigator]

It is illegal to be intoxicated in public, whether in a bar or walking down the street.

There is one additional requirement;


§49.02. Public intoxication.

(a) A person commits an offense if the person appears in a
public place while intoxicated to the degree that the person may
endanger the person or another.

[txinvestigator]

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.

Thank you for a valuable post. I too, hope you will stick around.

[seamusTX]

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

[txinvestigator]

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

Agreed.

me thinks it is much ado about nothing.

[Odin]

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.

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.

... 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.

[Odin]

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.

[Odin]

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.

[seamusTX]

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.

Right. It's a class A if not otherwise enhanced by being in a 51% establishment, etc., PC §46.035(g).

- Jim

[txinvestigator]

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.

[Odin]

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.

[KBCraig]

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

[Odin]

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]

[txinvestigator]

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.

[Odin]

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.