Alcohol & your CHL

[jiggerachi]

Late to the party but I didn't see anyone with this thought.

Anytime you see a major crash on the news, something where someone was critically injured and driver error seems to be the consensus. Listen close enough and chances are you'll hear "The driver had admitted to drinking earlier in the night." Could range from had one beer 6 hours before to drunk and waiting on blood test, but as soon as that phrase is let out dude is straight up guilty in the court of opinion. I'm sure legal matters get muuch much worse from that point as well when prosecutors get ahold of that info.

I would NOT want to be on the receiving end of that sentence if anything were to happen.

[jmra]

Late to the party but I didn't see anyone with this thought.

Anytime you see a major crash on the news, something where someone was critically injured and driver error seems to be the consensus. Listen close enough and chances are you'll hear "The driver had admitted to drinking earlier in the night." Could range from had one beer 6 hours before to drunk and waiting on blood test, but as soon as that phrase is let out dude is straight up guilty in the court of opinion. I'm sure legal matters get muuch much worse from that point as well when prosecutors get ahold of that info.

I would NOT want to be on the receiving end of that sentence if anything were to happen.

[Keith B]

If your friend was imparired by his drinking, then he was illegally carrying. Personnally, I may have one beer with a meal while carrying, but that is the limit for me, and that is a rare instance. And that will depend on my personal condition at the time of the consumption. If a person is tired or not feeling up to par, even one beer can potentially impair them and cause them to be illegally carrying.

No, if he was INTOXICATED while he was carrying then he was breaking the law. I'm IMPAIRED when someone smokes a cigarette next to me, because it stings my eyes and dulls my reaction time, but I'm not going to disarm.

The definition of intoxicated in 46.035 is "EXACTLY" the same as for driving. It's not "up to the cop's discretion" and it's not any more vague than it is for driving. It's up to the State to prove beyond a reasonable doubt that you were intoxicated as defined by the law. Same burden as for proving you were DWI. If you won't arm when you go out and have a drink then you should not drive either.

You're picking nits. And it IS up to the cops discreation. Per TPC 49.01:

(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.

If you are impaired and have a dulled reaction time (your words) by any of the listed items in red above, then you could be determined to be intoxicated and arrested by the cop. You might be able to beat it in court if you can prove you did not meet the definition, but a person who is actually impaired by those items listed IS intoxicated.

[The Annoyed Man]

If your friend was imparired by his drinking, then he was illegally carrying. Personnally, I may have one beer with a meal while carrying, but that is the limit for me, and that is a rare instance. And that will depend on my personal condition at the time of the consumption. If a person is tired or not feeling up to par, even one beer can potentially impair them and cause them to be illegally carrying.

Ditto. I am not by nature a drinker anyway. But if I take my wife out on a dinner date, I might have a beer or glass of wine with dinner. But I am a man of "ample proportions" with a commensurate body-weight, and one low-yield adult beverage has little or no effect on me. Also, we never go very far for dinner out anyway, so I usually don't have very far to drive to get home. But generally speaking, I'm happy to sip sweet tea while my wife has a glass of wine, so it is pretty much of a non-issue.

[hillfighter]

If someone gets fuzzy headed when taking prescription or OTC drugs, they're legally "intoxicated" as someone over 0.08 BAC.

I know some people don't drink at all when carrying. That is a personal choice that's a good idea for some people, but that's not what the law requires. The law prohibits carrying a handgun while you're intoxicated unless you're a LEO.

[ScottDLS]

If your friend was imparired by his drinking, then he was illegally carrying. Personnally, I may have one beer with a meal while carrying, but that is the limit for me, and that is a rare instance. And that will depend on my personal condition at the time of the consumption. If a person is tired or not feeling up to par, even one beer can potentially impair them and cause them to be illegally carrying.

No, if he was INTOXICATED while he was carrying then he was breaking the law. I'm IMPAIRED when someone smokes a cigarette next to me, because it stings my eyes and dulls my reaction time, but I'm not going to disarm.

The definition of intoxicated in 46.035 is "EXACTLY" the same as for driving. It's not "up to the cop's discretion" and it's not any more vague than it is for driving. It's up to the State to prove beyond a reasonable doubt that you were intoxicated as defined by the law. Same burden as for proving you were DWI. If you won't arm when you go out and have a drink then you should not drive either.

You're picking nits. And it IS up to the cops discreation. Per TPC 49.01:

(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.

If you are impaired and have a dulled reaction time (your words) by any of the listed items in red above, then you could be determined to be intoxicated and arrested by the cop. You might be able to beat it in court if you can prove you did not meet the definition, but a person who is actually impaired by those items listed IS intoxicated.

It's up to cops discretion whether to arrest you for being intoxicated while driving or carrying, like it is for every other criminal offense in the code. It is up to the prosecution, at trial, to prove to the jury the FACT of your INTOXICATION beyond a reasonable doubt. This FACT must be established the exact same criteria as for driving..., so there is no gray area any more than there is for driving. If it is illegal to carry after one drink it is illegal to drive after one drink. There is no mention of "impaired" in the relevant TXPC, though there are in other states, so using the word in relation to drinking while carrying is what confuses the issue for many.

[Keith B]

It's up to cops discretion whether to arrest you for being intoxicated while driving or carrying, like it is for every other criminal offense in the code. It is up to the prosecution, at trial, to prove to the jury the FACT of your INTOXICATION beyond a reasonable doubt. This FACT must be established the exact same criteria as for driving..., so there is no gray area any more than there is for driving. If it is illegal to carry after one drink it is illegal to drive after one drink. There is no mention of "impaired" in the relevant TXPC, though there are in other states, so using the word in relation to drinking while carrying is what confuses the issue for many.

I agree with you that it will have to be proven in court, but you are going to have to prove you were not intoxicated as well after you are arrested. As I stated, if you are impaired with any of the things listed in the statute, you are at the level you would be intoxicated. And if I was the prosecutor, then I would be relying on Mr. Webster's definition to say they you were intoxicated

impaired
[im-paird]
adjective
1.
weakened, diminished, or damaged:
impaired hearing; to rebuild an impaired bridge.
2.
functioning poorly or inadequately:
Consumption of alcohol results in an impaired driver.
3.
deficient or incompetent (usually preceded by an adverb or noun):
morally impaired; sports-impaired.

Additionally, TABC uses the term impaired as the level of BAC prior to being LEGALLY intoxicated in their training. Legally being greater than or equal to .08 BAC. https://www.tabc.state.tx.us/education/ ... Poster.pdf" onclick="window.open(this.href);return false;

Also, TXDOT has a good rundown including impairment and the law http://www.txdot.gov/inside-txdot/divis ... ation.html" onclick="window.open(this.href);return false;

Also, a DWI attorney runs it down http://www.mcconathylaw.com/TypesofDWI/ ... ver15.aspx" onclick="window.open(this.href);return false;

[patterson]

Lets say a person has 1 or 2 drinks and its not enough to be legally intoxicated but enough to slow the reflexes, would you want to go up against a BG with anything less than 100%?

[Jumping Frog]

Lets say a person has 1 or 2 drinks and its not enough to be legally intoxicated but enough to slow the reflexes, would you want to go up against a BG with anything less than 100%?

I am not as worried about that scenario as I am worried about making a judgement error while impaired, such as shooting an innocent bystander. That is why I do not drink at all (zero) while armed.

[patterson]

Lets say a person has 1 or 2 drinks and its not enough to be legally intoxicated but enough to slow the reflexes, would you want to go up against a BG with anything less than 100%?

I am not as worried about that scenario as I am worried about making a judgement error while impaired, such as shooting an innocent bystander. That is why I do not drink at all (zero) while armed.

[nightmare]

It's up to cops discretion whether to arrest you for being intoxicated while driving or carrying, like it is for every other criminal offense in the code. It is up to the prosecution, at trial, to prove to the jury the FACT of your INTOXICATION beyond a reasonable doubt. This FACT must be established the exact same criteria as for driving..., so there is no gray area any more than there is for driving. If it is illegal to carry after one drink it is illegal to drive after one drink. There is no mention of "impaired" in the relevant TXPC, though there are in other states, so using the word in relation to drinking while carrying is what confuses the issue for many.

I agree with you that it will have to be proven in court, but you are going to have to prove you were not intoxicated as well after you are arrested.

That's right. Legally it's no different for DL or CHL. Whether or not you consumed any alcohol in the past month, the cop may arrest you for being intoxicated while driving or carrying.

Considering the number of innocent people killed by drunk drivers and the number of innocent people killed by drunk CHL, I'm much more concerned about people leaving the keys at home than leaving the gun at home.

[cb1000rider]

I agree with you that it will have to be proven in court, but you are going to have to prove you were not intoxicated as well after you are arrested.
That's right. Legally it's no different for DL or CHL. Whether or not you consumed any alcohol in the past month, the cop may arrest you for being intoxicated while driving or carrying.

Considering the number of innocent people killed by drunk drivers and the number of innocent people killed by drunk CHL, I'm much more concerned about people leaving the keys at home than leaving the gun at home.

One critical difference is the process used. If you're driving and you're stopped and suspected of being intoxicated, LEOs have a very specific set of steps that they need to take to establish that you are indeed impaired. If they don't take those steps, perform them incorrectly, the case is substantially weakened. No single test is a determining factor as they all of the steps have some (perhaps substantial) margin of error.

I assume that intoxication while carrying is like public intoxication, where no specific steps or tests are required and it's largely left up to the profession digression of the officer. Fighting a charged that was based on the opinion of a professionally trained police officer isn't something that I want to have to do.. Especially since it's going to be hard to prove that there was no opportunity to take an intoxicating substances.. and without specific tests (blood, breath) - no specific evidence that might run contrary to an officer's professional opinion.

[Keith B]

I agree with you that it will have to be proven in court, but you are going to have to prove you were not intoxicated as well after you are arrested.
That's right. Legally it's no different for DL or CHL. Whether or not you consumed any alcohol in the past month, the cop may arrest you for being intoxicated while driving or carrying.

Considering the number of innocent people killed by drunk drivers and the number of innocent people killed by drunk CHL, I'm much more concerned about people leaving the keys at home than leaving the gun at home.

One critical difference is the process used. If you're driving and you're stopped and suspected of being intoxicated, LEOs have a very specific set of steps that they need to take to establish that you are indeed impaired. If they don't take those steps, perform them incorrectly, the case is substantially weakened. No single test is a determining factor as they all of the steps have some (perhaps substantial) margin of error.

I assume that intoxication while carrying is like public intoxication, where no specific steps or tests are required and it's largely left up to the profession digression of the officer. Fighting a charged that was based on the opinion of a professionally trained police officer isn't something that I want to have to do.. Especially since it's going to be hard to prove that there was no opportunity to take an intoxicating substances.. and without specific tests (blood, breath) - no specific evidence that might run contrary to an officer's professional opinion.

I keep hearing that there are 'specific steps for DWI' but not for CHL or public intox. It really is no different. A police officer may or may not administer a breathalyzer for a PI or CHL,but the field sobriety test is going to be performed for sure. And, if they want to strengthen their case, then they administer a breathalyzer to prove the BAC level.

Please point me to the rules that say they have to administer any type of test for DWI vs. PI or CHL.

[ScottDLS]

I agree with you that it will have to be proven in court, but you are going to have to prove you were not intoxicated as well after you are arrested.
That's right. Legally it's no different for DL or CHL. Whether or not you consumed any alcohol in the past month, the cop may arrest you for being intoxicated while driving or carrying.

Considering the number of innocent people killed by drunk drivers and the number of innocent people killed by drunk CHL, I'm much more concerned about people leaving the keys at home than leaving the gun at home.

One critical difference is the process used. If you're driving and you're stopped and suspected of being intoxicated, LEOs have a very specific set of steps that they need to take to establish that you are indeed impaired. If they don't take those steps, perform them incorrectly, the case is substantially weakened. No single test is a determining factor as they all of the steps have some (perhaps substantial) margin of error.

I assume that intoxication while carrying is like public intoxication, where no specific steps or tests are required and it's largely left up to the profession digression of the officer. Fighting a charged that was based on the opinion of a professionally trained police officer isn't something that I want to have to do.. Especially since it's going to be hard to prove that there was no opportunity to take an intoxicating substances.. and without specific tests (blood, breath) - no specific evidence that might run contrary to an officer's professional opinion.

I keep hearing that there are 'specific steps for DWI' but not for CHL or public intox. It really is no different. A police officer may or may not administer a breathalyzer for a PI or CHL,but the field sobriety test is going to be performed for sure. And, if they want to strengthen their case, then they administer a breathalyzer to prove the BAC level.

Please point me to the rules that say they have to administer any type of test for DWI vs. PI or CHL.

Additionally, presuming you are not driving, I don't believe there is any civil penalty for refusing the breath/field sobriety test...like have your DL suspended for 6 mo...etc. Although I guess you could always get one of those "no-refusal" Judge-in-Box types to fax a warrant to the cop's cell phone for a blood draw. There's a new idea, we'll have a no-refusal day for CWI (that's carrying while intoxicated, for the uninitiated), and WWI (walking while intoxicated) aka PI.

I think I'll just stay home, drink 1/2 a bottle of Bourbon, and OC around my living room, secure in the knowledge that I am breaking no law (except that of common sense). Then again it might be up to the cop's discretion whether to arrest me...for a non-crime. I'd hate to have to defend myself in court and PROVE I WASN'T (beyond a shadow of a doubt) intoxicated to a liberal Austin prosecutor, even though no crime was committed.

Curling up in the fetal position now, for fear of my door being busted down and having a flash bang thrown at my dog.

[jones0430]

Additionally, presuming you are not driving, I don't believe there is any civil penalty for refusing the breath/field sobriety test...like have your DL suspended for 6 mo...etc. ...

Do you remember there is an implied consent law in Texas? Yes, you get a 180 day suspension for the 1st offense, 2 years for the 2nd, and the 3rd offense. I imagine that the judge will take a dim view of your refusal, and then look at your CHL, which has also been taken at the same time as your DL, and tell you, good luck in getting another one.