Customer Outs Himself

[Bart]

especially if there's no video and the cop didn't administer a breath or blood test because he knows you're not over the limit.

Isn't refusal to take an in situ sobriety test an automatic "something or other"?

So what does that say if the officer doesn't ask the citizen to take one? Maybe miajaipi is right and they knew the citizen would pass, and then they would be obligated to disclose the exculpatory evidence.

[Oldgringo]

especially if there's no video and the cop didn't administer a breath or blood test because he knows you're not over the limit.

Isn't refusal to take an in situ sobriety test an automatic "something or other"?

So what does that say if the officer doesn't ask the citizen to take one? Maybe miajaipi is right and they knew the citizen would pass, and then they would be obligated to disclose the exculpatory evidence.

You tell me, I asked first.

[Bart]

The defense rests.

[Dragonfighter]

<snip>

Well, anyone who carry a gun in a pair of spandex bicycle shorts is arguably exhibiting "intentional failure to conceal....."

....and might be a bit of a perve to boot.

Some may argue that one that simply wears spandex bicycle shorts might be a bit of a perv.

Added in Edit to remain OT: I think we can safely conclude that though this guy's actions were not prudent, they were not necessarily illegal and he may have just been a social clod. My opinion on drinking in general has not changed nor my opinion on drinking and carrying. I'd rather not have any drinking in public and I'd rather no one drink while carrying but that is me and I am not even suggesting my morays be adopted nor imposed on anyone else.

I think Ol Zeke's quote, "the hardest thing about 'Freedom' is havin' the good sense to allow the other guy his," is magnificent and sometimes hard to honor. Purplehood's simple, "...it ain't my business..." is another jewel that applies. I fully respect the right of others to be idiots including the guy in the OP.

[srothstein]

Isn't refusal to take an in situ sobriety test an automatic "something or other"? The automatic "something or other" leads to an automatic need for a lawyer.

Yes and no. The SCOTUS has ruled in the past that remaining silent cannot be used against you, which is the basic principle here. But it will almost always result in the officer assuming you were intoxicated and booking you for whatever charge he was investigating at the time. It also means he has the least evidence possible (assuming you were also smart enough to be polite when you refused, shut up, and did as little walking or standing in his camera view as possible).

I will give a brief lesson in police procedure on this, so everyone will know how it will play out in general. For the lawyers and police amongst us, note that this is not the legal wording and is general rules and explanation. I am not going to go in-depth into any part.

If an officer stops a person for suspected intoxication, he looks for certain signs that should be there. As a general rule, the officer needs three of four signs (glassy eyes, slurred speech, unsteady on his feet, and an odor of alcohol emitting from the person). This is all the officer needs for probable cause to arrest. The officer MAY decide to offer a field sobriety test. This is not necessary to offer and not required to submit to. The standardized field sobriety test (SFST) consists of three events (the one leg stand, walk and turn, and horizontal gaze nystagmus) that have been laboratory tested and certified in court for predication of a BAC. In general, officers will let anyone go who passes these tests and book anyone who does not pass (either fails or refuses). In addition to the SFST, for certain offenses in chapter 49 of the Penal Code that involve vehicle use (boat, plane, auto, etc.) the officer may offer a blood or breath test. for these offenses, refusal of the tests results in an automatic suspension of your DL (with a hearing if requested). Unless the offense is one of these, the officer will not normally offer the blood or breath test. There is no law requiring it and some rules that might forbid it (machine use rules - the cities and counties do not own the machines). Incidentally, the blood or breath test choice is the officer's and not the suspect's and he only has to ask once. A suspect can request a blood test at his own expense, but it must be taken within two hours at the same location, so you really need to know a traveling nurse that is on call and will come do it. Effectively, this right to your own test is useless.

All of these rules are general since the definition of intoxication includes things other than alcohol. I have booked people for DWI without the breath test or after blowing a .000 on the test because I felt they were on drugs. I have never offered a blood or breath test to someone for public intoxication.

So, this is how this would play out, in my opinion, if you were drinking in a bar while carrying. The police somehow find out and come by. You have had one twelve ounce beer, and the officer wants to push the limit on carrying while intoxicated. He will usually not see the signs he needs, but might smell the required alcohol on you. If he is strictly honest, he will warn you that you are pushing the limits and ask you to leave the bar. You agree and nothing happens. You refuse and get arrested for criminal trespass.

Of, the officer is willing to say you were stumbling, had slurred speech, and he smelled the alcohol. Maybe you really are closer to the limit than you though (alcohol does affect judgment after all). The officer gets you outside where it is a little quieter and asks you to perform an SFST. You pass and he asks you to leave (see scene above). He would probably try to get you a ride instead of letting you drive (and I suggest you take it, your BAC is probably still climbing as you digest what you were just drinking - you might be under the line now and over it in ten minutes). You refuse or fail, and the officer is going to book you for carrying while intoxicated.

Here is the good news. If you refused, the only evidence is the officer's initial observations. A good lawyer will probably get the slurred speech and glassy eyes thrown out as the officer admits the bar was dark and noisy. With no other evidence, there is a very good chance you will win the case and it only will cost you one night in jail, a couple hundred dollars for the bail fee, and a few hundred to couple thousand for the lawyer.

The bad news is if the SFST is done, there is a good chance you will be convicted. Normally, the SFST is done on tape and the jury will hear exactly how you were talking and see exactly how bad your balance was. Even without the tape, the officer can now testify from his notes on exactly what you did and what the lab experiments predict your sobriety state to have been. I, and most of the officers I know and worked with in San Antonio or TABC have better court records for SFST only cases than breathalyzer machine cases.

In no case I have seen would you be offered a breathalyzer test for public intoxication or carrying while intoxicated without the driving component. It is the officer's judgment that gets you booked, and the jury's judgment that convicts you. A good lawyer can help with the second, but the first is hard to beat.

So, I know it is not illegal, but I think it is very good advice to not drink and carry or drive. You can probably drink a little and drive and get away with it easier than drinking a little and carrying, even though the laws are the same for what is intoxication.

[jamisjockey]

You are a wise man.
I wonder if his CHL was one of those advertised as real easy with little classroom and no qualifying? (cough, Utah). If you are going to carry in Texas, please take the time to learn all the laws no matter how short you wanted your class time to be to get a license. Ignorance of the laws reflects unfavorably on every one of us.

Your statment is a little bit ignorant. No offense intended, but from the Utah Penal code:

76-10-528. Carrying a dangerous weapon while under influence of alcohol or drugs
unlawful.
(1) Any person who carries a dangerous weapon while under the influence of alcohol or a
controlled substance as defined in Section 58-37-2 is guilty of a class B misdemeanor. Under the
influence means the same level of influence or blood or breath alcohol concentration as provided
in Subsections 41-6a-502(1)(a) through(c).(2) It is not a defense to prosecution under this section that the person:
(a) is licensed in the pursuit of wildlife of any kind; or
(b) has a valid permit to carry a concealed firearm.

I'm a Utah permit holder and took my class 8 years ago. I remember clearly being taught this section. If you know of an instructor who isn't teaching the required cirriculum mandated by the State of Utah, then turn them in.
801-965-4445

[srothstein]

Jason,

The problem he was pointing out is that you were taught the Utah Penal Code. This law does not apply in Texas. A person with a Utah permit living in Texas will never learn the Texas Penal Code unless he wants to study it on his own. This is a hard way to learn and understand any law.

For example, the section you posted says that under the influence has a meaning from a different section of the law. Is their definition of under the influence the same as ours? I know the .08 BAC will be the same (thanks to interference from the feds), but what about when I don't give a breath test to you? What is the standard used without the BAC? I don't know Utah law so it could be the exact same, but it could be different.

As one example of a major difference in Utah concealed carry laws and Texas laws, Utah allows college students with a license to carry in the classrooms. Texas most certainly does not allow this. This simple difference on where you can carry can be a very costly mistake.

I have no problem with anyone in Texas getting just a Utah license, but I strongly recommend that they take a Texas CHL class anyway, if only to learn the peculiarities and quirks of Texas law.

[jamisjockey]

Ignorance of the law is never a defense, a point I certainly agree with you on. Personally, I studied the Texas laws before I moved here in may and again before I took the Texas CHL course this last weekend. It didn't take very long to print and read the readily available handbook.

Not to pick nits, but

41-6a-502. Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration -- Reporting of convictions.
(1) A person may not operate or be in actual physical control of a vehicle within this state if the person:
(a) has sufficient alcohol in the person's body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
(b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or

As referenced in the Utah CHL laws. Took me about thirty seconds to cross reference the actual statute, although I recall the material from my CFP course.

Quite frankly, it was generally insulting that the original post I quoted would just assume that someone being a drunk moron must obviously have a Utah CFP.

[cbr600]

The problem he was pointing out is that you were taught the Utah Penal Code. This law does not apply in Texas. A person with a Utah permit living in Texas will never learn the Texas Penal Code unless he wants to study it on his own. This is a hard way to learn and understand any law.

Sadly, I think there are more than enough posts on TexasCHLforum that demonstrate someone can take a Texas CHL class in Texas and still not understand those parts of the Texas Penal Code (and administrative code) relating to CHL and firearms. Keep in mind those questions/comments are posted by people smart enough to join this forum. Imagine all the people who don't.

Personally, I knew enough from here, and my own research, to recognize where my instructor for the one-day class was not 100% correct, and also realize he skipped a required topic. (GC §411.188.(b)(3))

[Fangs]

Quite frankly, it was generally insulting that the original post I quoted would just assume that someone being a drunk moron must obviously have a Utah CFP.

I think you misunderstood the poster you quoted. I took it as: "Maybe this drunk moron had an out of state license and didn't have the Texas law covered in his class." The Utah comment was most likely in reference to a recent thread where people saw an advertisement for a Utah CFP class that was under 2 hours long, with NO shooting portion.

As opposed to "everyone with a Utah CFP is a drunk moron."

Just my thoughts.

[jamisjockey]

Quite frankly, it was generally insulting that the original post I quoted would just assume that someone being a drunk moron must obviously have a Utah CFP.

I think you misunderstood the poster you quoted. I took it as: "Maybe this drunk moron had an out of state license and didn't have the Texas law covered in his class." The Utah comment was most likely in reference to a recent thread where people saw an advertisement for a Utah CFP class that was under 2 hours long, with NO shooting portion.

As opposed to "everyone with a Utah CFP is a drunk moron."

Just my thoughts.

If someone is advertising 2 hour Utah courses, they are not complying with the cirriculum laid out by the Utah DPS. My course was about 8 hours long. The mandatory minimum cirriculum is a 50 page handbook.
And either way the post I quoted is awful presumptive. Should I assume that every moron on the road doesn't have a Texas driver's license?

[Ameer]

And either way the post I quoted is awful presumptive. Should I assume that every moron on the road doesn't have a Texas driver's license?

I'm more worried about the ones without insurance. Also, since insurance is mandatory, why is "uninsured motorist" the most expensive part of my car insurance?

[dicion]

And either way the post I quoted is awful presumptive. Should I assume that every moron on the road doesn't have a Texas driver's license?

I'm more worried about the ones without insurance. Also, since insurance is mandatory, why is "uninsured motorist" the most expensive part of my car insurance?

Being on a Visa, Having a Green Card, or being a Citizen are 'mandatory' to stay, live, and work in this country...
Just Sayin'...

You really expect them to get insurance too?

Just goes back to the point that Criminals Break laws.

And yes, they're criminals. As someone who went through the proper Visa, Marriage, paperwork fiasco with my wife, that took 5 years, 3 interviews, and $6,000 all told to get her her green card, I am infuriated by those who think they can just walk in and live here. I'm more infuriated at my government for allowing this to happen.

[duckhead]

As many of you probably know, I work at Chili's. Tonight I was walking through our bar area to pick up a margarita for my table when a guy at the bar stood up and shouted across the bar at a guy who I assume is a friend.

Some people never learn to use their indoor voice.

I don't know if they were raised in a barn and don't know better, or if they know better but are extremely narcissistic. Possibly even NPD. At lunch the other day, there was a woman who we could hear clear across the restaurant.

[Scire.Factor]

The bar area is off limits for CHL in some states - e.g., Florida.

That's one good reason to live in Texas...!

I disagree with you on this one. I find FL to be more CCW friendly compared to TX. In FL I dont have to look for any kind of sings or anything (30.06). As long as it isnt a location specifically mentioned by the law (i.e. federal building, a location or section of a location where its sole purpose is to serve alcohol, school, etc) it is 100% legal for me to carry there - even if there are the gun buster signs (if the manager/owner found out I am carrying and did not like it - he can ask me to leave and if I refuse, then I am breaking the law - but concealed is concealed). Plus the law with the bar thing doesnt effect me because if I go to Chili's or Applebees - I will sit at the dining section and have 1 beer (if at all). Plus there is no must inform officer law in FL. All in all I am glad and fortunate to be a resident of FL and stationed in TX where I can actually exercise my 2nd Amendment rights!