When is my handgun on or about my person...question?

[LOL]

Greetings,

My question is of a legal nature. I drive an SUV that is bereft of a trunk or locking dash/console. I have a cable anchored locking NANO gun vault in the vehicle not within arms reach of the front seat for when I encounter a 30.06 or 51% establishment.

Is the gun, locked inside the gun vault and not within reach, still considered on or about my person while I am in the vehicle? Are there specific areas in the SUV considered "ok" (ie. Spare tire well at the rear of the vehicle)? Is this strictly at LEO discretion?

Thanks!

[longtooth]

A lot is officer discretion. On or about is within reach & readily accessable. Locked in a lockbox would probably be stretching it some. May be w/in reach but definately not readily accessable.
Again, officer discretion gives a lot of lattitude.

[Jumping Frog]

Why are you worried about "on or about your person" when you are within your vehicle? The Texas Motorist Protection Act (MPA) explicitly allows you to have a handgun in your vehicle.

PC §46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
...
(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.

There are only 4 things you need to worry about when driving your SUV:

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.

Keep it hidden, don't commit crimes, and stay out of a criminal street gang.

[LOL]

I understand it's semantics, but to be sure, I'm not "worried". I'm just trying to determine a seemingly gray area for me with regards to not having a way to lock the gun up in a trunk.

I'm absolutely not condoning alcohol consumption and carrying, but in the event I'm returning home and stop for a steak and a single glass of cab, I'm certainly not .08, but through officer discretion could be deemed impaired. If the gun is locked away and out of reach in my gun vault, does my impairment now become negligible since my gun is not readily accessible?

Of course, I'm not going to quote anyone's response here as the law, just wondered if anyone out there had come across this scenario?

I have a lot of friends who are LEO, so I suppose I should have just asked one of them.

[Keith B]

I understand it's semantics, but to be sure, I'm not "worried". I'm just trying to determine a seemingly gray area for me with regards to not having a way to lock the gun up in a trunk.

I'm absolutely not condoning alcohol consumption and carrying, but in the event I'm returning home and stop for a steak and a single glass of cab, I'm certainly not .08, but through officer discretion could be deemed impaired. If the gun is locked away and out of reach in my gun vault, does my impairment now become negligible since my gun is not readily accessible?

Of course, I'm not going to quote anyone's response here as the law, just wondered if anyone out there had come across this scenario?

I have a lot of friends who are LEO, so I suppose I should have just asked one of them.

Impaired has the same meaning for carrying as it does for driving. If you are impaired, then you can't carry or drive. .08 BAC is definitive intoxicated for both, but under that and impaired is still illegal.

[LOL]

Thank you Longtooth, Keith and Bob for your replies.

[longtooth]

Surrounding the alcohol & the exact thing you talked about: Meal & one beer w/it.
On or about your person.

[slr001]

I understand it's semantics, but to be sure, I'm not "worried". I'm just trying to determine a seemingly gray area for me with regards to not having a way to lock the gun up in a trunk.

I'm absolutely not condoning alcohol consumption and carrying, but in the event I'm returning home and stop for a steak and a single glass of cab, I'm certainly not .08, but through officer discretion could be deemed impaired. If the gun is locked away and out of reach in my gun vault, does my impairment now become negligible since my gun is not readily accessible?

Of course, I'm not going to quote anyone's response here as the law, just wondered if anyone out there had come across this scenario?

I have a lot of friends who are LEO, so I suppose I should have just asked one of them.

Impaired has the same meaning for carrying as it does for driving. If you are impaired, then you can't carry or drive. .08 BAC is definitive intoxicated for both, but under that and impaired is still illegal.

Is this documented somewhere? I was under the impression this was still gray. Agree that .08 is impaired for both, but is it stated somewhere what constitutes impaired for CHL? But yes any reasonable person would agree that .08 would be impaired for both.

But given that CHL law does not specifically state that (I don't think), what stops an officer from making an arrest for carrying at .07, or .065?

I think this is why the OP wants a place in his vehicle that can then eliminate the gray are of having a handgun while intoxicated, but officially under .08

[Keith B]

I understand it's semantics, but to be sure, I'm not "worried". I'm just trying to determine a seemingly gray area for me with regards to not having a way to lock the gun up in a trunk.

I'm absolutely not condoning alcohol consumption and carrying, but in the event I'm returning home and stop for a steak and a single glass of cab, I'm certainly not .08, but through officer discretion could be deemed impaired. If the gun is locked away and out of reach in my gun vault, does my impairment now become negligible since my gun is not readily accessible?

Of course, I'm not going to quote anyone's response here as the law, just wondered if anyone out there had come across this scenario?

I have a lot of friends who are LEO, so I suppose I should have just asked one of them.

Impaired has the same meaning for carrying as it does for driving. If you are impaired, then you can't carry or drive. .08 BAC is definitive intoxicated for both, but under that and impaired is still illegal.

Is this documented somewhere? I was under the impression this was still gray. Agree that .08 is impaired for both, but is it stated somewhere what constitutes impaired for CHL? But yes any reasonable person would agree that .08 would be impaired for both.

But given that CHL law does not specifically state that (I don't think), what stops an officer from making an arrest for carrying at .07, or .065?

I think this is why the OP wants a place in his vehicle that can then eliminate the gray are of having a handgun while intoxicated, but officially under .08

Yes, Texas Government Code §411.171.

DEFINITIONS. In this subchapter:
............................
(6) “Intoxicated” has the meaning assigned by Section 49.01, Penal Code.
.........................................

And 49.01 is the same for DWI and carrying a handgun

PC §49.01. DEFINITIONS. In this chapter:
(1) “Alcohol concentration” means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(2) “Intoxicated” means:
(A) not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, a
combination of two or more of those substances, or any other substance into
the body; or
(B) having an alcohol concentration of 0.08 or more.

So, driving or carrying, if you are .08 or higher, you are defacto intoxicated. If under that point you can still be determined to be impaired to the level of being intoxicated at an officers discretion.

[victory]

Hypothetically, wouldn't honest cops need a warrant to bust open the locked box?

[LeakyWaders]

Am I the only one that had to look up the definition of "bereft"?

[LOL]

Thanks again for all the replies (especially yours, Leakywaders).

I'm probably reading the responses incorrectly, so let me dial it in for maybe a clearer answer:

I understand the legal impairment BAL is .08 and officer can use discretion when deciding if the driver is in violation, even if under .08. My question boils down to this scenario: PD stops me and I've had a single glass of wine with dinner. I am not close to .08, which is defacto cause to arrest for DUI. The officer, clearly convinced I am not intoxicated from my glass of wine, cuts me loose. Happens all day every day to the populace. Now, throw in I have a CHL and the same factors apply from the above scenario. If the gun is locked away out of my reach in my gun vault, tethered to the rear bench seat, am I technically "carrying" or does the position of the gun and myself constitute "not carrying" for the sake of avoiding a violation of CHL law?

(I'm asking because this scenario has been discussed ad nauseum in the forums and the OP usually relates that he or she simply puts their handgun in the trunk if they have an unplanned alcoholic beverage, thereby negating any chance of "impaired while carrying").

Thanks again!

[Keith B]

Thanks again for all the replies (especially yours, Leakywaders).

I'm probably reading the responses incorrectly, so let me dial it in for maybe a clearer answer:

I understand the legal impairment BAL is .08 and officer can use discretion when deciding if the driver is in violation, even if under .08. My question boils down to this scenario: PD stops me and I've had a single glass of wine with dinner. I am not close to .08, which is defacto cause to arrest for DUI. The officer, clearly convinced I am not intoxicated from my glass of wine, cuts me loose. Happens all day every day to the populace. Now, throw in I have a CHL and the same factors apply from the above scenario. If the gun is locked away out of my reach in my gun vault, tethered to the rear bench seat, am I technically "carrying" or does the position of the gun and myself constitute "not carrying" for the sake of avoiding a violation of CHL law?

(I'm asking because this scenario has been discussed ad nauseum in the forums and the OP usually relates that he or she simply puts their handgun in the trunk if they have an unplanned alcoholic beverage, thereby negating any chance of "impaired while carrying").

Thanks again!

If you are not impaired for driving you should not be impaired for carrying. There is no difference in the law. HOWEVER, an individual officer MAY have different personal views on what is impaired for driving vs. carrying, even though there is no difference in the law. It will be up to the officer to make the determination and to prove in court that you in fact were impaired to the level you could not carry and/or drive.

As to the locked in the vault, there is no case law that I am aware of where the locked vault means not 'about' your person. However, you could argue that due to the gun being locked in the box and not 'readily accessible', that it was not on or 'about' your person. That would be an argument to prove if you needed it, but nothing in definition for the law on that.

[srothstein]

If the gun is locked away out of my reach in my gun vault, tethered to the rear bench seat, am I technically "carrying" or does the position of the gun and myself constitute "not carrying" for the sake of avoiding a violation of CHL law?

I have always been taught that being in a locked compartment, such as the glove box, would make the pistol not "on or about your person". But i went looking for a better source and did not find mention of the locked compartment. What I did find was a lot of cases where specific locations were ruled either way, dating back to horses and saddlebags or buggies. Most of the modern cases referred to the definition given in Wagner v. State. It was decided in 1916 and it said:

The Legislature must have meant something when it used the words 'or about the person,' and on principle using the word 'about' in its ordinary meaning, taking into consideration the context and subject matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could without materially changing his position get his hand on it;

This would almost definitely make a box chained to the rear bench seat not carrying. Some of the cases cited in this decision mentioned the rear of buggies, or the front of buggies away from the person. Without going into the intoxication laws (where I agree on what has been said - legal to drive is legal to carry), this should put your mind at ease on your lockbox location.

[LOL]

I'll continue to err on the side of caution...abstain, but you definitely cleared it up for me...much obliged.