Restaurants with bars. (Chili's etc)

[KBCraig]

You only have to read of people's interaction with officers who misunderstand the law, to know why the laws should be simplified. (One comes to mind, where the poster was told by a LEO that it was flatly illegal to carry anywhere alcohol was sold.)

If the law was so plain and simple as TXI says, there would be no need to take a lawyer with you to court.

[seamusTX]

I agree with Kevin. Some examples:

It is illegal (federal law) to have a firearm other than unloaded and locked in a case withing 1,000 feet of a school, except under authority of a CHL. Millions of people break that law when they go to the range, go hunting, or other activities that are otherwise legal. The law is almost never prosecuted, but there it is.

What's a school, anyway? Is a church a school if Sunday school is held there once a week?

Straw purchases are illegal, but you can give a firearm as a gift or sell to an individual without verifying that the recipient is legally permitted to possess it. Where is the line drawn? (Ask Mayor Bloomberg of New York.)

- Jim

[kauboy]

I wasn't able to post earlier for some reason(was getting a server error, could have been local).

Anyways, the traveling thing is easy to understand from both sides of the argument. To us, if we meet the five criterion, we shouldn't have to prove anything else and should be sent on our way. However, to high and mighty DAs, they read the word "presumption" and refer to the description of it located in the Penal Code under the Burden of Proof chapter:
§ 2.05. PRESUMPTION. (a) Except as provided by
Subsection (b),
...
(b) When this code or another penal law establishes a
presumption in favor of the defendant with respect to any fact, it
has the following consequences:
(1) if there is sufficient evidence of the facts that
give rise to the presumption, the issue of the existence of the
presumed fact must be submitted to the jury unless the court is
satisfied that the evidence as a whole clearly precludes a finding
beyond a reasonable doubt of the presumed fact; and
(2) if the existence of the presumed fact is submitted
to the jury, the court shall charge the jury, in terms of the
presumption, that:
(A) the presumption applies unless the state
proves beyond a reasonable doubt that the facts giving rise to the
presumption do not exist;
(B) if the state fails to prove beyond a
reasonable doubt that the facts giving rise to the presumption do
not exist, the jury must find that the presumed fact exists;
(C) even though the jury may find that the
presumed fact does not exist, the state must prove beyond a
reasonable doubt each of the elements of the offense charged; and
(D) if the jury has a reasonable doubt as to
whether the presumed fact exists, the presumption applies and the
jury must consider the presumed fact to exist.

This is interpreted to mean that only a jury can make a decision based on the presumption, not an officer. So the officer should still haul you in and let a jury decide your fate. At least this is how attorneys read it.

[Skiprr]

Straw purchases are illegal, but you can give a firearm as a gift or sell to an individual without verifying that the recipient is legally permitted to possess it. Where is the line drawn? (Ask Mayor Bloomberg of New York.)

That reminds me of one of the most infamous examples. In 2000, Sarah Brady--preeminent anti-gun activist and founder of the Brady Campaign--bought a .30-06 at a Delaware gun store for her son, James Brady Jr. The Delaware Justice Dept. declared this to be a straw purchase, but I don't believe the matter was pursued. Brady later admitted to the purchase in her book, A Good Fight.

"Do what I say, not what I do."

[kauboy]

Huh... I just remembered that my folks did this for me for an early Christmas present so I could go hunting. I wasn't old enough to buy it, so they did. Was that legal? They didn't use my info or anything.

[Odin]

Huh... I just remembered that my folks did this for me for an early Christmas present so I could go hunting. I wasn't old enough to buy it, so they did. Was that legal? They didn't use my info or anything.

If the laws were as clear as they should be you wouldn't have ask that question.

[seamusTX]

I just remembered that my folks did this for me for an early Christmas present so I could go hunting. I wasn't old enough to buy it, so they did. Was that legal?

A minor can't technically own a firearm, at least in Texas. They just lent it to you permanently.

However, there are states where it is illegal for a minor to have a weapon outside of the parents' direct supervision.

- Jim

[kauboy]

Thanks for the replies guys

[srothstein]

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.)

To be honest, I have no idea why any person would consent to talk with a police officer about a crime they are committing when they do not have to. Lucky for me, most criminals are stupid. I have always recommended that people learn to just say no when asked to consent to a search or give evidence against themselves. It does mean you are going to have a record of minor criminal charges (tickets and the like) because you got the cop made when he could have given a warning if you cooperated, but it also means it is much harder to get a record for the real crimes.

And AFAIK, there is no way a jury is supposed to take any cooperation or lack of cooperation into its factoring, but they are humans and almost always will. How many times have you thought someone must be guilty or hiding something because of the way they acted, even without proof? Juries are humans and do the same thing.

[srothstein]

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".

I just wanted to correct a persistent misunderstanding of the laws. A permittee who is required to display a 51% sign can be punished for failure to do so. TABC has the authority to take action under an administrative case (civil action) for failure to post or improper posting of any of the required signs. Just call the local district office to file a complaint on the permittee. The agent's have 30 days to make an initial visit and 60 days to complete the handling of any complaint.

Most of the time, they will try for voluntary compliance and give the guy the right signs. Repeated refusal to post properly can result in fines, suspension of permit, or even revocation of the permit. But, I have to admit that this is probably not going to be seen as a high priority for building a case.




And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanting from the person (not the clothes).

An officer cannot give a breathalzyer test for PI or carrying while intoxicated. The rules on the machines are that they can only be used for operating motor vehicles (including boats and planes). Officers can use one of the portable breath testers, but it is not a final test and only counts as probable cause help like the above observations.

[Odin]

And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanting from the person (not the clothes).

What case law is this information derived from? I don't recall reading a specific case that established those parameters.

[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".

I just wanted to correct a persistent misunderstanding of the laws. A permittee who is required to display a 51% sign can be punished for failure to do so. TABC has the authority to take action under an administrative case (civil action) for failure to post or improper posting of any of the required signs. Just call the local district office to file a complaint on the permittee. The agent's have 30 days to make an initial visit and 60 days to complete the handling of any complaint.

Most of the time, they will try for voluntary compliance and give the guy the right signs. Repeated refusal to post properly can result in fines, suspension of permit, or even revocation of the permit. But, I have to admit that this is probably not going to be seen as a high priority for building a case.

Its not a misunderstanding. The law gives no punishment for not posting a required sign. The TABC may take it into their own hands, but Texas law does not address a punishment.

[srothstein]

And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanating from the person (not the clothes).

What case law is this information derived from? I don't recall reading a specific case that established those parameters.

I don't know which case it is from, or if it is from a single case or a group of cases. I know this is how we are taught to testify and that it has always held up in court for me that way.

[txinvestigator]

And while I am posting on clarifying laws, there are well established rules for public intoxication. While seeing any of the normal things can constitute suspicion and further investigation, probable cause has been ruled to require three of the following:

1. Bloodshot or glassy eyes
2. Unsteady on the feet or swaying
3. Slurred speech
4. An odor of intoxicants emanting from the person (not the clothes).

What case law is this information derived from? I don't recall reading a specific case that established those parameters.

Thats the same you learned in the police academy Odin. There are others also.

[txinvestigator]

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".

I just wanted to correct a persistent misunderstanding of the laws. A permittee who is required to display a 51% sign can be punished for failure to do so. TABC has the authority to take action under an administrative case (civil action) for failure to post or improper posting of any of the required signs. Just call the local district office to file a complaint on the permittee. The agent's have 30 days to make an initial visit and 60 days to complete the handling of any complaint.

Most of the time, they will try for voluntary compliance and give the guy the right signs. Repeated refusal to post properly can result in fines, suspension of permit, or even revocation of the permit. But, I have to admit that this is probably not going to be seen as a high priority for building a case.

Its not a misunderstanding. The law gives no punishment for not posting a required sign. The TABC may take it into their own hands, but Texas law does not address a punishment.

He told you it is an administrative case, and the TAC and the TABC laws specify what adminstrative actions can be taken. That includes "punishment" even tough they are not penal code crimes.