Restaurants with bars. (Chili's etc)

[KBCraig]

I was asked by a friend to respond to this thread because I currently work for TABC.

Thanks, Steve!

I hope you'll stick around and join in on the general discussion. This is a great forum, and over the years I've come to really respect you through your posts on tx.guns and the forums at policemag.com.

All my comments are offered with an explanation: I don't drink in public as a general rule, but on very rare occasions, I've had a beer with dinner, or as many as two beers with dinner and snacks over the course of two+ hours while watching a movie at our local restaurant/cinema (perhaps five beers total outside my home over the last five years). I'm not concerned that I'm going to get in trouble; I'm only asking because I don't like laws that don't have very explicit, indisputable parameters.

If the permitted premise is a hotel, all bets are off and almost anything can happen. The hotel rules have gotten fairly complex and allow things that are not allowed elsewhere.

Thanks for doing a great job of summing up the mess created by the legislature through the years.

To me, the solution is simple: eliminate "51% establishments" from the list of places off limits. Make it about the CHL and his/her behavior and/or intoxication, not about a maze of rules.

If the bar is in a hotel, it should be posted by the doors to the bar if they are going to have the 51% rule.

That's a mighty big "should be", since the CHL is in violation whether or not the establishment is posted with the proper TABC 51% notice.

In answer to the second main question, the law is clear on what constitutes carrying while intoxicated.

The law is. But the application is just as confusing --and potentially unjust-- to people on the street.

For any officer to arrest you for unlawfully carrying by a CHL, based on the carrying while intoxicated law, he would need to be able to show either

1. a factual alcohol concentration (blood, urine, or breath test) OR
2. A. that you were not in possession of the normal use of physical or mental faculties AND
B. that this lack of use was due to the introduction of an intoxicant.

That "or" and "and" lie at the heart of people's concerns, especially your 2.B., because "normal" must relate to the subject's physical or mental faculties, comparing and contrasting them to how they act while "drinking" versus "non-drinking".

Many sports fans behave outrageously, whether or not they're drinking. I have no doubt that an officer with an agenda could testify that I didn't have "normal" use of my faculties, if he watched me rooting for the Razorbacks.

The officer can show this by giving a field sobriety test or by simple testimony of your actions. It is important to note that the law does not require the use or possession of YOUR faculties, but of normal ones.

One of my close friends has multiple sclerosis. It's not bad, and he has a high level of function. But even when completely sober, he staggers and limps a bit and looks generally wobbly. I've also seen him full in his cups, and I can tell you that the difference in his "motor faculties" would be indistinguishable to anyone who didn't know him very well.

This is much easier, since all I need to do then is show that you were not acting in a socially acceptable and normal fashion.

This is the really scary part of the standard.

Then I need to show that this is because of the intoxicant.

Without a BAC or proof of the amount of alcohol consumed, how do you show this?

One great example of this was the arrest of a woman in a bar for P.I. because she was standing on the table top, taking her blouse and bra off, and screaming that she would have sex with every (not any but every) man in the bar. This was probable cause that she was intoxicated since this is not considered to be normal use of mental faculties.

Just out of curiosity, was her BAC checked, or was there any evidence offered as to the amount of alcohol she had consumed? I ask, because that behavior is not "acting in a socially acceptable and normal fashion", and yet I have known women who acted that way because they were ramped up in "party mode", even without having any significant amount of intoxicant.

Her defense could be that it was not due to the alcohol but due to her being manic. I have yet to hear anyone admit to behavior like this in court as being normal or caused by anything other than intoxicants though.

A charge of PI isn't a big deal to most people. Given the choice of admitting on the record that they're sluts at heart, or that it was the fault of intoxication on the demon rum (i.e., three sips of a cooler), it's obviously better to blame in on alcohol.

But, CHLs have much more at stake. Do you know of any CHLs charged with carrying while intoxicated? Especially if the charge wasn't secondary to DWI (with definitive evidence of BAC), but simple PI with nothing other than the officer's observation of behavior outside "socially acceptable and normal fashion".

*snork*... I just flashed on nudists, who are certainly outside "socially acceptable and normal" behavior when stone cold sober, but they might have trouble carrying concealed. They can be "public" at Hippie Hollow, too.

Thanks for chiming in, Steve. I'm not trying to bust your chops; as I said, you're a Texas LEO for whom I have the highest regard. You're a true Peace Officer, rather than an "enforcer of laws".

Kevin

[longtooth]

srothstein, Welcome aboard & that is a very good first post. Stay active.

[HankB]

For any officer to arrest you for unlawfully carrying by a CHL, based on the carrying while intoxicated law, he would need to be able to show either

1. a factual alcohol concentration (blood, urine, or breath test) OR
2. A. that you were not in possession of the normal use of physical or mental faculties AND
B. that this lack of use was due to the introduction of an intoxicant.

The officer can show this by giving a field sobriety test or by simple testimony of your actions.

There is an "implied consent" law which applies to driving a motor vehicle, i.e., by the act of driving, you consent to being tested for being drunk.

But AFAIK, there is no such "implied consent" law for walking down the street, sitting in a restaurant, etc.

So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, and second, is there any case law that says declining to submit to a test that is NOT required by law is evidence of guilt?

(To re-iterate, I do NOT believe actual drunks ought to drive cars, carry guns, fly airplanes, or do anything else that endangers others. I'm just curious about what the LAW says you MUST do in the way of taking a drunk test if you're not driving a car.)

[propellerhead]

Here's the reply I got from Chili's concerning their TABC license. This tells me the bar and dinning areas are all one and it's ok to carry in the bar.

From: Sebastian Milano [mailto:Sebastian.Milano@chilis.com]
Sent: Monday, December 18, 2006 9:36 AM
To: <propellerhead>
Subject: Chili's Hulen

Dear <propellerhead>

Thank you for your inquiry regarding TABC licensing at Chili's Hulen. Our liquor permits cover our entire restaurant, they are not separate for Bar and Restaurant.

Thank you for choosing Chili's! I hope your family has a great Holiday and a Happy New Year.

Sebastian Milano
Chili's Area Director
Voicemail: 88349
Ph: 817-938-3486
Fax: 972-628-8257

[seamusTX]

So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, ...

It is illegal to be intoxicated in public, whether in a bar or walking down the street. If a LEO has probable cause to believe someone is intoxicated (because of staggering, slurred speech, etc.), he can investigate further.

Failing to cooperate will result in an arrest for something, probably 99% of the time.

- Jim

[kauboy]

Good work propellerhead!!!

[Odin]

So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, ...

It is illegal to be intoxicated in public, whether in a bar or walking down the street. If a LEO has probable cause to believe someone is intoxicated (because of staggering, slurred speech, etc.), he can investigate further.

Failing to cooperate will result in an arrest for something, probably 99% of the time.

- Jim

I believe that staggering or slurred speech would be reasonable suspicion, not probable cause. Reasonable suspicion would allow the officer to investigate further.

You're right about failure to comply.

I don't condone intoxicated riving or carrying, but I do worry that some people who are not intoxicated (but have had a drink or two) could possibly encounter a police officer who is unfriendly towards CHL holders and decides to make an arrest based on something other than the intent of the law. A person could have one beer and be stopped for a traffic offense and the officer smells the beer. If the driver has a less than ideal attitude about the traffic stop (some people actually take traffic stops personally) or does/says something to annoy the officer and the driver admits to having one beer and presents his DL and CHL then the officer could make an arrest for carrying while intoxicated. People go to jail for POP all the time when they could have avoided it.

That's the main reason I would like to see a clearly defined and universally applicable set of parameters applied to the term "intoxicated" in the Texas penal code. When the rules are clear, concise, and universally applied then everyone benefits.

[seamusTX]

I believe that staggering or slurred speech would be reasonable suspicion, not probable cause. Reasonable suspicion would allow the officer to investigate further.

You're right, of course.

I do worry that some people who are not intoxicated (but have had a drink or two) could possibly encounter a police officer who is unfriendly towards CHL holders and decides to make an arrest based on something other than the intent of the law. A person could have one beer and be stopped for a traffic offense and the officer smells the beer.

It is a potential problem.

If the person is driving, they can take a breath test and pass (BAC under 0.08). I can't see the DA's office trying to press an intoxication charge when DWI wouldn't stick and the person was not otherwise doing something illegal.

I can't see too many realistic scenarios where someone who is not driving would be stopped and searched by police. They need reasonable suspicion to stop you if you're walking in a public place.

All crimes that have subjective standards, like disorderly conduct, are open to interpretation and potential abuse by police. There was a minor uproar several years ago when someone went to the Santa Fe, Texas, police station and asked about the procedure for filing a complaint against an officer. (He did not actually file a complaint.) The minute he left the station, he was arrested for jaywalking.

BTW, I avoid drinking beer for just this reason: After one sip you smell like beer. If you happen to spill some on your clothing...

- Jim

[Braden]

Not to get this thread back on topic or anything silly like that, but my understanding is that a business that gets more than 51% of its revenue must, by law, post the sign. If they do not, we have absolutely no way of ever knowing what percentage of their revenue comes from the sale of alcohol. What are we supposed to do? Go ask the manager how much alcohol he has sold that day?

This is never a problem for me because I do no frequent bars or other places that sale THAT much alcohol.

Chili's, and other similar restaurants, are perfectly legal to carry at unless they have either a 51% sign or a 30.06 sign posted.

[kauboy]

Not to get this thread back on topic or anything silly like that, but my understanding is that a business that gets more than 51% of its revenue must, by law, post the sign. If they do not, we have absolutely no way of ever knowing what percentage of their revenue comes from the sale of alcohol. What are we supposed to do? Go ask the manager how much alcohol he has sold that day?

Yes, they are required to. But, there is no penalty for them if they don't post it. We still have to use the divine wisdom that a CHL apparently grants us(:roll:) to know whether they meet 51% or not. If they do, and you carry, regardless of sign presence, you will still be charged if "made".

[Odin]

I believe that staggering or slurred speech would be reasonable suspicion, not probable cause. Reasonable suspicion would allow the officer to investigate further.

You're right, of course.

I do worry that some people who are not intoxicated (but have had a drink or two) could possibly encounter a police officer who is unfriendly towards CHL holders and decides to make an arrest based on something other than the intent of the law. A person could have one beer and be stopped for a traffic offense and the officer smells the beer.

It is a potential problem.

If the person is driving, they can take a breath test and pass (BAC under 0.08). I can't see the DA's office trying to press an intoxication charge when DWI wouldn't stick and the person was not otherwise doing something illegal.

- Jim

True, but if the officer doesn't intend on arresting you for DWI, only for carrying under CHL while intoxicated, the officer is not obliged to offer you the chance to take a BAC test.

I'm not thinking that this sort of thing will happen often, I just have a problem with laws not being as clear, concise, and universally applied as possible. Police officers have the discretion to arrest for a misdemeanor offense or take other law enforcement action such as a warning, etc. But when the offense is enhanced (in this case from a Mis C PI) to something that will cause you to lose your license then I think the law should be worded, defined, and applied as clearly and evenly as possible to avoid even rare instances of misapplication [abbreviated profanity deleted] the law.

As I mentioned before, it's much like the "travelling" clause of the law, which is IMO left open to too much interpretation. The DA down in San FranAustin has already stated that he will chose to enforce the law contrary to the written law because, probably because he's a leftist who doesn't like guns. The people in Travis Co shouldn't be punished for his political beliefs, and the law shoule leave no room for political activism on the part of police or prosecutors.

[seamusTX]

True, but if the officer doesn't intend on arresting you for DWI, only for carrying under CHL while intoxicated, the officer is not obliged to offer you the chance to take a BAC test.

As I said, it's possible.

But I doubt that an officer has the discretion to stop you for suspected drunk driving, then fail to arrest you when he determines that you are drunk.

That kind of thing used to happen all the time (20 or so years ago). Then the drunk would cause a disaster and the police would be blamed for not stopping him earlier.

Getting hit with drunk driving is way worse than a class C misdemeanor that will probably be dismissed after the judge lectures you. You can lose your driver license, lose other professional licenses, get fired, and even lose custody of your children if you're divorced. If a LEO wants to put the heat on you, that's a way to do it.

... I just have a problem with laws not being as clear, concise, and universally applied as possible.

You and me both. A citizen of ordinary intelligence and education should be able to read the plain text of the law and know what is illegal, or not. It aint' that way, hasn't been for over 100 years.

- Jim

[HankB]

So first, WHY would anyone who's NOT driving consent to a field sobriety or other test, ...

It is illegal to be intoxicated in public, whether in a bar or walking down the street. If a LEO has probable cause to believe someone is intoxicated (because of staggering, slurred speech, etc.), he can investigate further.

Failing to cooperate will result in an arrest for something, probably 99% of the time.

- Jim

Co-operating may give him actual evidence, not co-operating will tick him off and he may arrest you out of sheer cussedness . . . but in court, there won't be anything beyond "I figured he looked drunk/guilty/whatever, but since he wasn't driving he didn't take a test he wasn't required by law to take, he just kept telling me he wanted his lawyer."

If the officer is actually a crooked cop who'll perjure himself or plant something you've got problems no matter what, but otherwise a good lawyer is very likely to get things tossed in the absence of hard evidence . . . if it even gets as far as court.

You may not beat the ride, but you likely WILL beat the rap.

(This topic holds some interest to me because many years ago, a friend had been drinking while underage. When the car was pulled over, the driver - himself barely legal drinking age - blew something like 0.01, barely a blip, but his underage passengers - including my buddy - refused to take the breathalyzer. Cop was PO'd, but with no actual proof, all he did was cuss and threaten.

If they'd taken the breathalyzer test, they'd have been arrested on the spot, since it would have provided proof of their underage drinking.

Fast forward to the present . . . with no arrest record, my friend has been an airline pilot for a couple of decades now. )

[seamusTX]

FWIW, it's standard operating procedure to arrest drunks (people who are drunk beyond a shadow of a doubt) and release them the next day if they haven't done anything else wrong. It's a public-safety measure.

There aren't enough prosecutors, courtooms, or jail cells to prosecute every misdemeanor, not by a long shot. Only about 3% of arrests lead to trials.

As you say, if the police want to mess with you and are willing to break the law to do it, they have many ways to make life really miserable.

- Jim

[txinvestigator]

[
If the person is driving, they can take a breath test and pass (BAC under 0.08). I can't see the DA's office trying to press an intoxication charge when DWI wouldn't stick and the person was not otherwise doing something illegal.

That is a common misunderstanding. Having a BAC under .08% is not a walk and not a pass in the sense that you state. A person CAN be convicted of DWI with a BAC below .08%. The state simply needs to show that the person met the other definition.

When the presumed level of intoxication was still a BAC of .10%, I obtained a conviction on a .08%. In fact, I once obtained a conviction on a 0.00% BAC.

The state is not supposed to need to prove the "intoxication" element of DWI if the .08% BAC is met. .08% is presumed to be "intoxicated"

That said, I had a case with GREAT video, a BAC of .12%, clear PC for the stop (drove into the oncoming lane on a two-way 4-lane street to stop at the curb) and the jury still gave a not-guilty verdict.