PI while carrying

[Working Man]

Situation:
A work associate recently received a PI while carrying. He claims he was
not intoxicated and did not take the breathalyzer. He was approached in
the parking lot IIRC. He has retained the services of a lawyer but has not
gone to court about this yet.

If I understand him/the situation correctly if he is convicted on the PI
then a class A will follow for the carrying while intoxicated.

Questions:
So, if convicted of the PI (class B) and the carrying while intoxicated
(class A) will he ever be able to get his license back? If so how long
will he have to wait? Can he get his gun back?

If cleared of the PI then the class A can not be but what does he have to
do to get his license back? I believe he said the police had taken it from
him.

[Charles L. Cotton]

Class A and B misdemeanors within 5 years of application (new or renewal) for a CHL are disqualifying. Also, if his CHL is revoked because he became ineligible due to the conviction(s), then he has to wait an additional 2 years. As a final insult, if the defendant gets deferred adjudication or probation, the exclusionary period doesn't begin until after the deferred period is over!

Chas.

Here is the operative Code Sections:

§ 411.186. REVOCATION. (a) A license may be revoked
under this section if the license holder:

(3) subsequently becomes ineligible for a license
under Section 411.172, unless the sole basis for the ineligibility
is that the license holder is charged with the commission of a Class
A or Class B misdemeanor or an offense under Section 42.01, Penal
Code, or of a felony under an information or indictment;

(c) A license holder whose license is revoked for a reason
listed in Subsections (a)(1)-(5) may reapply as a new applicant for
the issuance of a license under this subchapter after the second
anniversary of the date of the revocation if the cause for
revocation does not exist on the date of the second anniversary. If
the cause for revocation exists on the date of the second
anniversary after the date of revocation, the license holder may
not apply for a new license until the cause for revocation no longer
exists and has not existed for a period of two years.

[Working Man]

Thanks, I'll let him know.

[switch]

I have wondered if you knew you were fixing to be ocnvicted or planned to plead out, could you voluntarily surrender your license to DPS and avoid the revocation? Avoid the extra 2 years?

[Mithras61]

Situation:
A work associate recently received a PI while carrying. He claims he was
not intoxicated and did not take the breathalyzer. He was approached in
the parking lot IIRC. He has retained the services of a lawyer but has not
gone to court about this yet.

This concerns me. The CHL laws don't specify a BAL for intoxication, so as I understand it, a breathalyzer is not required. He could easily be convicted if the officer felt he was impaired even though he was legal to drive.

Texas Penal Code 46.035 (d) says "A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed." and some LEOs claim this means that if you have consumed ANY alcohol, you are intoxicated. My understanding is that this is because the code doesn't cite the relevant portion of Texas law where "intoxicated" is defined.

[Roger Howard]

Bottom line. IF YOU CARRY, DON'T DRINK!! EVER

[Diode]

Bottom line. IF YOU CARRY, DON'T DRINK!! EVER

That would do the trick but moderation fits in the middle somewhere.

[KD5NRH]

This concerns me. The CHL laws don't specify a BAL for intoxication, so as I understand it, a breathalyzer is not required. He could easily be convicted if the officer felt he was impaired even though he was legal to drive.

This is one that I've wondered about; if I go to a bar or restaurant, (leaving the gun in the car, of course) and have a beer or two, wait a couple hours, and head home, how hard would it be for a cop to say I was too intoxicated to carry but not DUI? If he didn't offer or require a breathalyzer or blood test, I could see a jury smelling a rat when he claims I was visibly intoxicated enough to arrest while driving, but not enough to go through the DUI procedures.

[Mithras61]

This concerns me. The CHL laws don't specify a BAL for intoxication, so as I understand it, a breathalyzer is not required. He could easily be convicted if the officer felt he was impaired even though he was legal to drive.

This is one that I've wondered about; if I go to a bar or restaurant, (leaving the gun in the car, of course) and have a beer or two, wait a couple hours, and head home, how hard would it be for a cop to say I was too intoxicated to carry but not DUI? If he didn't offer or require a breathalyzer or blood test, I could see a jury smelling a rat when he claims I was visibly intoxicated enough to arrest while driving, but not enough to go through the DUI procedures.

In your specific circumstances, I can see how a jury could smell a rat, but the original post was that the accused was approached in a parking lot, and the charge is not DUI, but PI. The law on PI is:

49.02 Public Intoxication

"Public Intoxication" means:

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.

"Intoxicated" is defined as:

A. not having the normal use of mental or physical faculties by reason of the introduction of alcohol, 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 the offense is claimed under 49.02(A), then a breathalyzer wouldn't be required, and it appears that if the LEO observed activity that indicated to the LEO that the accused was intoxicated (such as sipping on a beer), then the arrest can be made without any further investigation.

[Roger Howard]

Bottom line. IF YOU CARRY, DON'T DRINK!! EVER

That would do the trick but moderation fits in the middle somewhere.

I agree with moderation. Personally If I carry, I don't drink at all. Even 1 alcoholic beverage slows your reaction time and impairs judgement. I also have another reason. I make my living with my commercial drivers license. I will not do anything which may jeporadize my income. On the other side, I do think you can have a beer and still be safe, especially with a meal. I have made my choice and if I carry I don't drink, period. I would rather carry than drink. IMHO

[KD5NRH]

Same for me. If I'm going out to drink, my gun stays in my safe at home.

Well, if I'm going out "to drink," that's the case, but if I'm going out to dinner with friends, we're generally going to sit and chat for an hour or more after finishing the meal. Thus, in that case, the gun goes in the lockbox when we get there, and stays locked up for at least an hour after my during-dinner Guinness is finished.

My fiance is a bit of a lightweight when it comes to alcohol, (one small margarita and she's dopey for the rest of the night) so I have to plan on driving anyway.

[DKSuddeth]

IIRC, isn't there a precedent about definitions that are not specifically detailed in the statute, that any prevailing definition has to apply or that particular statute would have to be ruled unconstitutionally vague?

[Mark G26]

Class A and B misdemeanors within 5 years of application (new or renewal) for a CHL are disqualifying. Also, if his CHL is revoked because he became ineligible due to the conviction(s), then he has to wait an additional 2 years. As a final insult, if the defendant gets deferred adjudication or probation, the exclusionary period doesn't begin until after the deferred period is over!


Chas.

Here is the operative Code Sections:

§ 411.186. REVOCATION. (a) A license may be revoked
under this section if the license holder:

(3) subsequently becomes ineligible for a license
under Section 411.172, unless the sole basis for the ineligibility
is that the license holder is charged with the commission of a Class
A or Class B misdemeanor or an offense under Section 42.01, Penal
Code, or of a felony under an information or indictment;

(c) A license holder whose license is revoked for a reason
listed in Subsections (a)(1)-(5) may reapply as a new applicant for
the issuance of a license under this subchapter after the second
anniversary of the date of the revocation if the cause for
revocation does not exist on the date of the second anniversary. If
the cause for revocation exists on the date of the second
anniversary after the date of revocation, the license holder may
not apply for a new license until the cause for revocation no longer
exists and has not existed for a period of two years.

So are you saying lets say arrested class B with CHL(not carring) -revoked after court dispostion 5/99(CHL revoked 5/99) with probation 2 years completed 5/2001, one would have to wait seven years until 5/2008 to be come eligible or 7 years from 5/99?

[HankB]

IANAL, but since your friend was not driving a motor vehicle, and hence was not required to - and did not! - take a breathalyzer, any evidence of PI would be, well, flimsy, unless the LEO has video of your buddy staggering around or puking his guts out in an alley.

So from your post it sounds like the only evidence is the cop saying "Well, he looked like he could have been drunk" or words to that effect.

Unless there's more to it than what you posted, IMHO any halfway decent lawyer ought to be able to get this tossed for lack of evidence.