Quick question regarding alcohol

[Abraham]

What about carry a legal length knife and being intoxicated?

Legal/Illegal?

P.S. a little thread jack I know, but kinda/sorta in the same vein...

[jbarn]

.08% is not a limit

Yes it is. Anyone "having an alcohol concentration of 0.08 or more" is intoxicated in Texas whether or not they show it.

A common misunderstanding. I did not write that .08% is not intoxicated. I wrote that .08% is not a limit. If you look carefully, I wrote that a person can be intoxicated without being .08% BAC. a person at below .08 can be intoxicated. What 08% is, is a presumed level of intoxication. It is not a limit. If it were a limit, a person under that could not be intoxicated, and we all know that isn't true.

There are two definitions of intoxicated.

[jbarn]

.08% is not a limit

Yes it is. Anyone "having an alcohol concentration of 0.08 or more" is intoxicated in Texas whether or not they show it.

It is not a lower limit, but an upper limit.

It isn't an upper limit either.

A limit, like a speed limit, means anything above that is a violation and anything below is not. That is not what .08% means.

[Abraham]

There's the seeing double with both eyes open and seeing single with one eye open.

[jbarn]

What about carry a legal length knife and being intoxicated?

Legal/Illegal?

P.S. a little thread jack I know, but kinda/sorta in the same vein...

The carry of the knife is not proscribed by law, intoxicated or not. Penal code 46.035 is what makes carrying a handgun while intoxicated umlawful. It does not address anything but handguns carried by holders of Concealed Handgun Licenses.

[WildBill]

.08% is not a limit

Yes it is. Anyone "having an alcohol concentration of 0.08 or more" is intoxicated in Texas whether or not they show it.

It is not a lower limit, but an upper limit.

It isn't an upper limit either.

A limit, like a speed limit, means anything above that is a violation and anything below is not. That is not what .08% means.

I know what limit means - and this is a limit. A limit does not mean that there is a minimum and maximum.

Maybe I should have been more clear - anything above 0.08% is legally intoxicated. Below 0.08%, you may be intoxicated.
§ 49.01. DEFINITIONS. In this chapter:
(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.

[gringo pistolero]

A limit, like a speed limit, means anything above that is a violation and anything below is not. That is not what .08% means.

I would have expected somebody who claims to be a TCLEOSE/TCOLE instructor would know that a motorist can be cited and convicted of speeding for driving below the posted limit, depending on the circumstances. Likewise, somebody can be intoxicated below 0.08 BAC depending on the circumstances.

[Oldgringo]

.08% is not a limit

Yes it is. Anyone "having an alcohol concentration of 0.08 or more" is intoxicated in Texas whether or not they show it.

A common misunderstanding. I did not write that .08% is not intoxicated. I wrote that .08% is not a limit. If you look carefully, I wrote that a person can be intoxicated without being .08% BAC. a person at below .08 can be intoxicated. What 08% is, is a presumed level of intoxication. It is not a limit. If it were a limit, a person under that could not be intoxicated, and we all know that isn't true.

There are two definitions of intoxicated.

At the very least, there are two definitions of intoxicated....and a whole bunch of descriptions.

[jbarn]

A limit, like a speed limit, means anything above that is a violation and anything below is not. That is not what .08% means.

I would have expected somebody who claims to be a TCLEOSE/TCOLE instructor would know that a motorist can be cited and convicted of speeding for driving below the posted limit, depending on the circumstances. Likewise, somebody can be intoxicated below 0.08 BAC depending on the circumstances.

Now you are splitting hairs, but since you want to go there I certainly am hapoy to indulge you.

For this example we will take the case of a controlled access highway with a posted speed limit of 60. Given clear weather and moderate traffic an operator is not speeding at 60 MPH. A LEO could not cite the person based on the speed of 60 alone. At 61, the person could be cited.

THAT is a limit.

Take a person who is stopped by a LEO for a traffic violation. The LEO developes Probable Cause to believe the person is intoxicated based on observation and standardized field sobriety test arrests the person. The person has yet to exhibit any BAC level because no test was given. If the "limit" were .08% BAC, how could the officer arrest with no evidence of .08? He arrests based on the 1st definition of intoxication, which is subjective:

"A person 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; of two or more into the person. "

The person is arrested for this definition. Once arrested, a test, breath or blood, is given to determine an alcohol concentration of the person. Take an example of a person who refuses to give a sample. There is no way to prove BAC. The person would be prosecuted under the definition anove. This subjective definition would be up to the jury to decide.

However, with a test sample a BAC can be obtained. If the person is .08% or greater, then the statutory definition of intoxication has been met, and the burden of the element of intoxication has been met. In other words, the person is automatically presumed to be intoxicated. It is an objective definition. But what if a person has a BAC below .08%? Does that mean the person gets to go home free? No. The state can use the subjective definition to prosecute. As a LEO, I obtwined convictions for people under .08%. If .08% were a "limit" then any BAC below that would not be intoxicated. That is just not the case.

Despite what the media has conditioned us to think, there is no legal limit for intoxication. For the case of a person violating PC 46.035, a BAC will not even be considered. The first, and subjective definition" will be used.

The OP asked about being over .08 and carrying his gun. His actual BAC is irrelevant to an offense under 46.035.

[jbarn]

.08% is not a limit

Yes it is. Anyone "having an alcohol concentration of 0.08 or more" is intoxicated in Texas whether or not they show it.

It is not a lower limit, but an upper limit.

It isn't an upper limit either.

A limit, like a speed limit, means anything above that is a violation and anything below is not. That is not what .08% means.

I know what limit means - and this is a limit. A limit does not mean that there is a minimum and maximum.

A limit means there has to be either a minimum of max. Otherwise, there is no limit.

Maybe I should have been more clear - anything above 0.08% is legally intoxicated. Below 0.08%, you may be intoxicated.

That is a great, simple explanation.

[un0fficial]

Been meaning to ask this. If I go to a restaurant with my family and have 1 (maybe 2) beers, are you still legally okay to carry as long as you remain under the legal limit?

[Wes]

If you really want to go there, there isn't technically a speed limit in Texas either, it's a presumed speed. The posted speed limit is used as 'prima facie evidence' of speeding. You can actually get a ticket for going under the posted speed limit. I've had one. You can also get out of a ticket for going, even 5 over if you were driving safely.

http://www.nhtsa.gov/people/injury/enfo ... xspeed.pdf" onclick="window.open(this.href);return false;



Back on subject, regardless of where I am, if I know I'm drinking more than a beer or two the gun isn't gonna be with me. There is no acceptable case IMO to do so. Impaired or intoxicated or whatever you might argue isn't legal, a person still isn't in full control. No matter how seasoned a drinker they claim to be. I'm not risking my life or liberty over a few beers.

[jmra]

Been meaning to ask this. If I go to a restaurant with my family and have 1 (maybe 2) beers, are you still legally okay to carry as long as you remain under the legal limit?

Actually no one can answer that question with any reliability because there are too many factors involved as to what impact that beer or two will have on each individual and how an officer is going to react. Much safer bet to drink tea.

[jbarn]

Been meaning to ask this. If I go to a restaurant with my family and have 1 (maybe 2) beers, are you still legally okay to carry as long as you remain under the legal limit?

There is legal limit for intoxication. It is unlawful for you to carry while intoxicated. I know by the term "legal limit" you refer to .08% BAC. You will not be offered a breath test for carrying while intoxication. The definition listed earlier in this thread will be used. It is a subjective definition. So are you intoxicated after 2 beers? No one here can tell you. I doubt it, unless you are a 60 pound Middle Schooler, .

A person can be impaired under .08%.

[jbarn]

Back on subject, regardless of where I am, if I know I'm drinking more than a beer or two the gun isn't gonna be with me. There is no acceptable case IMO to do so. Impaired or intoxicated or whatever you might argue isn't legal, a person still isn't in full control. No matter how seasoned a drinker they claim to be. I'm not risking my life or liberty over a few beers.

Just out of curiosity, do you drive in situations involving alcohol where you would not carry?