Drinking While Carrying

[HankB]

. . . However, Intoxication is NOT difficult to prove. I have had DWI convictions where the person blew BELOW the presumed level, and where no blood alcohol sample was obtained, and I obtained plenty of Public Intoxication convictions. . . .

TXI, IANAL, but my understanding is that DWI convictions can go two ways - "Driving While Intoxicated" which involves some sign of impairment, and/or "Driving with 0.08% or over BAC." So a person with a low tolerance may show impairment (staggering, slurred speech, etc.) and thus be convicted of DWI even if they have "only" 0.07% BAC. (Or if under 21, any BAC above 0.00%.) Is it something like that?

If a CHL holder is not driving and not visibly impaired and does not submit to a BAC, breathalyzer, or field sobriety test, "carrying while intoxicated" may be quite difficult to prove - I suppose you'd look for witnesses to his drinking, or check bar tab or credit card records, but in the absence of other evidence, successful prosecution would be an uphill battle.

[Venus Pax]

As much as I like a glass of wine, I typically abstain since I'm a cheap drunk.

[glockoneniner]

My CHL instructor has told the class that it was illegal to consume alchol and carry. The manual states in the FAQ section that it is illegal to carry while intoxicated. Knowing that he was more or less preaching a personal philosophy, I made the decision that if I decide to have an adult beverage (Or a few), that I would act like an adult and put the gun in the safe!

[seamusTX]

The CHL booklet says (in the FAQ section):

Q: Can I carry a handgun if I am drinking alcohol?
A: No; it is illegal to carry a handgun if you are intoxicated.

I think this answer ignores the definition of intoxicated, but I suppose that's where this advice comes from.

- Jim

[frankie_the_yankee]

My CHL instructor has told the class that it was illegal to consume alchol and carry. The manual states in the FAQ section that it is illegal to carry while intoxicated. Knowing that he was more or less preaching a personal philosophy, I made the decision that if I decide to have an adult beverage (Or a few), that I would act like an adult and put the gun in the safe!

The CHL instructor who ran my renewal class did pretty much the same thing.

Personally, I do not enjoy being preached to except in church.

In a CHL class, I would much rather be accurately informed as to the requirements of the law.

One thing I notice that is different here compared to "Yankeeland" is that police here are MUCH more "sensitive" to possible DWI violations.

Last month, I got rear ended while sitting at a traffic light on the way to work in the morning. It was a minor collision, and the other driver was cited for failing to maintain control of her vehicle. I was not carrying so I did not declare, but I keep my CHL in a small ID wallet with my DL, so I'm sure he saw it. (Note: He did NOT ask me if I was carrying.) While the cop is taking my info he asked me if I had been drinking this morning. I told him that I had not. Then he asked me if I had had anything to drink the night before. Again, I answered, "No". He asked me if I drank at all, and I said, "Yes." Then he asked me how long it had been since I had had anything to drink and I told him it had been a few days.

Then this would be bloodhound says, "Gee, I'm almost sure I can smell alcohol somewhere. Are you wearing cologne?" I said, "Yes." (I felt like saying, "Maybe there's someone over in the next county who is drinking right now, and it's him that you smell." But I held my tongue.) At that point, he pretty much dropped the subject.

Now all the time, I'm standing there perfectly alert, lucid, and stone cold sober. (I'd say, "Sober as a judge", but I was more sober than that.) Carrie Nation herself would have given me a clean bill of health. But not "Barney the Bloodhound".

I think this guy needs more training.

Bottom line: If you're right, you're right. I'm not gonna change what I do just because I might run into a poorly trained cop. If I'm doing nothing wrong, I'm good with it.

[Mike1951]

I can understand instructors teaching that drinking is verboten.

Since our legislators chose not to define intoxicated, we are left to deal with the ambiguity.

My guess is the instructor is trying to avoid former students saying, "My instructor said it was ok to drink and carry."

[frankie_the_yankee]

I can understand instructors teaching that drinking is verboten.

Since our legislators chose not to define intoxicated, we are left to deal with the ambiguity.

My guess is the instructor is trying to avoid former students saying, "My instructor said it was ok to drink and carry."

Maybe so, but I would have more respect for what he was telling me if he would just accurately explain the law as best as he could, and maybe then follow up with some personal advice instead of telling me, "You can't drink at all while carrying. It's against the law.", which is patently untrue.

It can leave one wondering, "How many other things did he tell me today that were untrue?"

My instructor for my original CHL class in 2002 said flat out that one drink was within the law for a normal person, but that it was risky to drink more than that while carrying.

I believe that statement to be accurate.

[srothstein]

Lots of interesting questions and opinions here. Let's look at the law and what it really says for a minute.

First, the law says that it is illegal for a CHL to carry a firearm while intoxicated (PC 46.035). Note that it does not say while under the influence or while drinking. You must be intoxicated for this to come into play.

Also note that this chapter of the law does not define what is intoxicated. So, to find a definition, we must look elsewhere. The first place to look, is Chapter 1 for the main definitions. These definitions apply to the whole Penal Code unless they get overridden by a specific section or chapter definition. There is no definition of intoxication there either. OK, so there is no legal definition specifically in play here. Under the Code Construction Act, (chapter 311 of the Government Code) we find that words are used according to their normal usage unless there is a statute giving the word a technical legal meaning. So, we next look to see if there is a definition of intoxicated in any law, giving the Penal Code first priority. Fortunately, we find one in Chapter 49. This defines intoxicated as:

(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 we have one of two conditions that define intoxicated. The officer can either prove the person had a BAC over .08 or can prove he was not in possession of his normal faculties due to ingestion of a drug or alcohol. The easiest way is to take some type of BAC, such as a breathalyzer, a urinanalysis, or a blood test. Of course, the officer can ask the suspect to do this, but the suspect can decline with no penalty. As was stated, the implied consent law really only applies to driving. So, if you consent to a BAC or any test like this, you might be easily proven intoxicated - even though you are in full possession of your normal faculties (I know several alcoholics who are not affected until their BAC goes over about .20 or .25 and almost never have less than a .10).

But assume we cannot get you to agree to the test. How do I still prove intoxication? I can ask you to perform the field sobriety tests and base my testimony on that. Of course, we will assume you are smart enough to not take those tests either (you never have to take a field sobriety test). Then I go based on my normal observations of your condition.

Any officer out of the academy knows that there are generally four signs of intoxication that courts look for. The signs are bloodshot eyes, slurred speech, unsteady on the feet, and an odor of alcoholic beverage coming from the breath. If a person possesses one of these, it is not a sign of intoxication. If a person possesses any combination of three of these signs, it constitutes probable cause to believe he is intoxicated. (And no, I cannot cite the court case that made this ruling. It is just what I have been taught and used in court for the past 20 years. The new trainees I get are all being taught the same thing in the local police academies too.) Other things that help are signs like rapid mood swings, unusual attitudes, disorderly clothing (especially people who have either vomited or urinated on themselves).

This is how I can testify in court and prove you were intoxicated. I have had lawyers challenge these observations such as asking me if I knew how the client spoke before when he was sober (so how could I tell he was slurring or different). They have asked how I knew how the client normally walked, or if I have ever had bloodshot eyes from a lack of sleep. I will answer that any one sign of these could be explained away but not three or four together.

And TXI had one other point that is important. This is not the same standard as for PI. The PI standard is that he be so intoxicated that he may be a danger to himself or others (of course, possessing a gun while you are intoxicated makes the danger to others fairly easy to prove).

And here is a trick you might not be aware of that could really hurt you. If the officer books you for 46.035 carrying while intoxicated, be careful that he does not also book you for PI. Most PI cases are not truly heard or handled, but you are held until sober, then found guilty and sentenced to time served or such. If I were handling this type of incident, I would guarantee I would do this, because I could then use the PI conviction as proof that another court had FOUND that you were intoxicated at that point in time. Makes this case easy since there is a rule saying I only need to adjudicate any point one time.

[txinvestigator]

. . . However, Intoxication is NOT difficult to prove. I have had DWI convictions where the person blew BELOW the presumed level, and where no blood alcohol sample was obtained, and I obtained plenty of Public Intoxication convictions. . . .

TXI, IANAL, but my understanding is that DWI convictions can go two ways - "Driving While Intoxicated" which involves some sign of impairment, and/or "Driving with 0.08% or over BAC." So a person with a low tolerance may show impairment (staggering, slurred speech, etc.) and thus be convicted of DWI even if they have "only" 0.07% BAC. (Or if under 21, any BAC above 0.00%.) Is it something like that?

negative. There is one charge concerning alcohol (and drugs or illegal substances) and driving; DWI. DWI, is DWI. A person with 0.0% BAC can be convicted of DWI. (think drugs)

As Srothstein pointed out, either definition can be used.

If a CHL holder is not driving and not visibly impaired and does not submit to a BAC, breathalyzer, or field sobriety test, "carrying while intoxicated" may be quite difficult to prove - I suppose you'd look for witnesses to his drinking, or check bar tab or credit card records, but in the absence of other evidence, successful prosecution would be an uphill battle.

No one is going to offer a breath test to a PI or CHL carrying while intoxicated.

[txinvestigator]

And remember, to obtain a conviction for CHL carrying while intoxicated, being a danger to yourself or others is not an element of the offense. The burden of proof is less than for Public Intoxication.

BTW, under Texas law, there is no obligation to submit to Field Sobriety Tests either.

I think you mean something more like "the standard for proof" than the "burden of proof" as you stated. Except for when the law requires one to mount an affirmative defense, the burden of proof is always on the state. And guilt must be proven "beyond a reasonable doubt".

You got me. I should have said that there are fewer elements to prove in CHL carry while intox.

If a LEO attempted to pop me for carrying while intoxicated after having ONE beer or glass of wine, I would volunteer to take a breath or blood test. And if for some reason the LEO refused to cooperate, I would contact my lawyer at the first opportunity and have HIM arrange for me to be tested, WITH witnesses present who agree to swear out affadavits or do whatever might be necessary to legally establish that I was tested and blew whatever number I blew.

That ain't gonna happen. He would have to find a certified intoxilizer operator to administer the test, And there is no requirement for the LEO or jail to allow it.

It does not matter, as what you would have blown is only ONE possible way to conviction.

[frankie_the_yankee]

If a LEO attempted to pop me for carrying while intoxicated after having ONE beer or glass of wine, I would volunteer to take a breath or blood test. And if for some reason the LEO refused to cooperate, I would contact my lawyer at the first opportunity and have HIM arrange for me to be tested, WITH witnesses present who agree to swear out affadavits or do whatever might be necessary to legally establish that I was tested and blew whatever number I blew.

That ain't gonna happen. He would have to find a certified intoxilizer operator to administer the test, And there is no requirement for the LEO or jail to allow it.

It does not matter, as what you would have blown is only ONE possible way to conviction.

Fine. And I'm still gonna have my glass of wine (or beer) whenever I feel like it, with not a care in the world of ever being convicted of carrying while intoxicated.

But I have a few questions for you, TXI. You have provided some good information, as has srothstein. But neither of you has directly stated one way or the other whether a person with a normal response to alcohol is breaking the law if they are carrying after having one glass of wine or one beer. So say you get rear ended like I did, and you're carrying, and you declare it as you are obligated to. You are acting perfectly normal. No bloodshot eyes. No slurred speech. Your clothing isn't "messed" or messed up. You walk and talk normally. You do not exhibit wild mood swings. You are calm, lucid and collected, and you are not breaching the peace.

Do you think a person of that description is intoxicated? Have you ever heard of anyone like that getting charged and convicted of carrying while intoxicated? Have you ever known a cop to have a drink (one drink) while carrying? Have you ever known of a cop who was charged and convicted of carrying while intoxicatd after having one drink?

[txinvestigator]

If a LEO attempted to pop me for carrying while intoxicated after having ONE beer or glass of wine, I would volunteer to take a breath or blood test. And if for some reason the LEO refused to cooperate, I would contact my lawyer at the first opportunity and have HIM arrange for me to be tested, WITH witnesses present who agree to swear out affadavits or do whatever might be necessary to legally establish that I was tested and blew whatever number I blew.

That ain't gonna happen. He would have to find a certified intoxilizer operator to administer the test, And there is no requirement for the LEO or jail to allow it.

It does not matter, as what you would have blown is only ONE possible way to conviction.

Fine. And I'm still gonna have my glass of wine (or beer) whenever I feel like it, with not a care in the world of ever being convicted of carrying while intoxicated.

I am with you 100%

But I have a few questions for you, TXI. You have provided some good information, as has srothstein. But neither of you has directly stated one way or the other whether a person with a normal response to alcohol is breaking the law if they are carrying after having one glass of wine or one beer. So say you get rear ended like I did, and you're carrying, and you declare it as you are obligated to. You are acting perfectly normal. No bloodshot eyes. No slurred speech. Your clothing isn't "messed" or messed up. You walk and talk normally. You do not exhibit wild mood swings. You are calm, lucid and collected, and you are not breaching the peace.

Fair question. If the officer has reason to believe you are intoxicated in your scenario, DWI will surely also be raised. With what you stated, It appears you are saying the officer has no reason to suspect intoxication. In that case, I don't see it as an issue.

Have you ever heard of anyone like that getting charged and convicted of carrying while intoxicated?

I have never heard of ANYONE being arrested under that law. A statistical record, unfortunately, would not reveal the circumstances.

Have you ever known a cop to have a drink (one drink) while carrying? Have you ever known of a cop who was charged and convicted of carrying while intoxicatd after having one drink?

There is no legal prohibition against a cop carrying while intoxicated. And as you have well pointed out, GENERALLY, one drink does not an intoxicated person make. (fortys and trough style drinks excluded)

[KBCraig]

There is one charge concerning alcohol (and drugs or illegal substances) and driving; DWI. DWI, is DWI.

*ahem*

There's that one, and there's the other one, which is DUI (for drivers under age 21).

Obviously, DUI doesn't apply to CHLs (all of whom are 21+).

Kevin

[txinvestigator]

There is one charge concerning alcohol (and drugs or illegal substances) and driving; DWI. DWI, is DWI.

*ahem*

There's that one, and there's the other one, which is DUI (for drivers under age 21).

Obviously, DUI doesn't apply to CHLs (all of whom are 21+).

Kevin

Yes, I am well aware of that, but nice catch.

And to return the favor, An Active duty military CAN obtain a CHL prior to 21, no?

[frankie_the_yankee]

There is no legal prohibition against a cop carrying while intoxicated.

That's a surprise.

In RI the statute against carrying while intoxicated applies to everyone.

There was even a case of a not quite 20 year veteran cop in my home city (who I went to high school with and was a well-known drunk even then) who was found sleeping in a drunken stupor in his private car in the middle of the night in a bank parking lot. This happened in a neighboring town. When the local cops rousted him, he woke up and started brawling with them. They actually "encountered" his gun during the fight, before they got him hog-tied and found out that he was a cop.

They did not charge him with DWI, as he was sleeping when they found him. But they DID charge him with resisting and with carrying while intoxicated - a felony in RI.

He had handed out a few lumps in the fight and they were ticked off.

This was about the 3rd or 4th time this guy had to be fished out of a bar or some other place where had passed out or caused some other problem, according to newspaper reports.

About 4 months later, all charges were dropped. As the DA explained it, there were "defects" in the police report on the incident that would have made it impossible to get a conviction.

A week after that, the cop retired for "medical reasons", which allowed him to qualify for his full pension.

Now let me emphasize that as corrupt as government in RI is known to be, there was no deal of any kind here. Things just happened to work out that way by mere chance.

Uh-huh.

But your saying that in TX, CHL's can't even go inside a 51% place and drink club soda, while off duty cops can drink themselves into the gutter while carrying guns and there is no legal penalty for that?

If that's what the law says, I have a problem with it. As I stated earlier, cops put their pants on one leg at a time, just like I do. When a cop is stinking drunk, his judgement on the "shoot / no shoot" issue is no better than anyone else who is stinking drunk. The law should carry a penalty for any human being who carries a gun in public while intoxicated, IMO.

And if they are ALSO carrying a badge, the standard should be higher, not lower.