Texas soldier faces legal battle over gun in hospitial

[Purplehood]

I Spoke to Mr Sampson’s lawyer this morning... I am meeting him Friday for a longer discussion.
Thus far, this case is what it has been alluded to here, wrongfully accused initially, and amended charges added that have no merit but cannot be proved as wrongly charged, just not supportable.

Im told the NRA will not weigh in with support as this case does not deal in a rights issue or constitutional issue.

That leaves Mr Sampson to mount his own defense, at his own cost.
The lawyer handing the case, former military enlisted, retired as a Master Sergeant, went to school, completed law degree, and started his practice right back here in the Belton area.
Is a NRA member, active in shooting sports (if you do steel challenges at the Temple club you may know him)

Im not willing to stand behind Mr Sampson, nor drop a dime in a bucket for his defense…. But Im close on both accounts..
Those who may be interested in doing that same, check back here after Friday… I’ll lay out everything I know,, and if any are interested in donating to Mr Sampson I’ll ask the lawyer to set something up.

Glad to hear that you are home. :)

[Jaguar]

I Spoke to Mr Sampson’s lawyer this morning... I am meeting him Friday for a longer discussion.
Thus far, this case is what it has been alluded to here, wrongfully accused initially, and amended charges added that have no merit but cannot be proved as wrongly charged, just not supportable.

Im told the NRA will not weigh in with support as this case does not deal in a rights issue or constitutional issue.

That leaves Mr Sampson to mount his own defense, at his own cost.
The lawyer handing the case, former military enlisted, retired as a Master Sergeant, went to school, completed law degree, and started his practice right back here in the Belton area.
Is a NRA member, active in shooting sports (if you do steel challenges at the Temple club you may know him)

Im not willing to stand behind Mr Sampson, nor drop a dime in a bucket for his defense…. But Im close on both accounts..
Those who may be interested in doing that same, check back here after Friday… I’ll lay out everything I know,, and if any are interested in donating to Mr Sampson I’ll ask the lawyer to set something up.

Thank you for the update, keep us posted on this is a situation as you can.

I hope the case is as appears, and if so I would like to contribute to his defense.

[TexasGal]

If this went down as described, we need to do what we can to assist. If we don't support a CHL holder to make his/her case in court when stuff like this happens, then cases can be lost creating the unfavorable case law we all want to avoid. Looking forward to seeing a fund set up or his defense.

[jmra]

Bronco,
Is it possible to get a copy of the officer's original report from the lawyer? I would like to know if that report mentions the smell of alcohol. If it does not, I will contribute to his defense. If it does then I will not.
The big question to me is when does the officer first mention that he smelled alcohol. If it is in the original report then the guy is up a creek without a paddle. If it is first mentioned right before the tack on charge then it is bogus for sure and the guy is getting railroaded. The original report is the key to this thing as far as I am concerned.

[SewTexas]

like I mentioned earlier, "the smell of alcohol" means nothing. One can smell of alcohol because of simply bumping into someone in a club, or in a parking lot during a party or concert. That does not mean One took even one sip of alcohol trust me, I know from first hand experience. His report should say "His breath smelled of alcohol" OR better yet, he should have a breath test.

[E.Marquez]

Keeping in mind, this still has to go to trial…Not sure how much Mr Simmons and his lawyer will let out of the bag before trial.

And anything I relate here is third part related….. just want to make that clear…. I will relate what I’m told, but can verify it no further than that.

My understanding is, No mention of alcohol as an issue was brought up initially, No field sobriety tests administered, no arrests for DUI (it was clearly known he drove to the hospital) No blood drawn at the hospital, no portable or fixed site breathalyzer test performed. The first mention of this being an alcoholic related intoxication issue was after the plea bargain presented from the DA was turned down.

I will take the questions poised here to Mr Simmons lawyer on Friday.

[cbunt1]

Bronco,
Is it possible to get a copy of the officer's original report from the lawyer? I would like to know if that report mentions the smell of alcohol. If it does not, I will contribute to his defense. If it does then I will not.
The big question to me is when does the officer first mention that he smelled alcohol. If it is in the original report then the guy is up a creek without a paddle. If it is first mentioned right before the tack on charge then it is bogus for sure and the guy is getting railroaded. The original report is the key to this thing as far as I am concerned.

My take is a little different...We don't yet have case law that defines carrying while intoxicated clearly. The way I read the law (I am not a lawyer) I interpret it to be the same standard as driving while intoxicated. In short, whether the smell (subjective) of alcohol was in the original report, while relevant, is NOT the key issue in the intoxication portion. Many DWI cases have led to not guilty verdicts based on the subjective assessment of "control of faculties" rather than the objective BAC.

In short, if the officer wants to make the case that someone is indeed intoxicated, he/she has to MAKE THE CASE. This is the standard in DWI or PI, and should be the same in CWI.

Right, wrong, or indifferent, this is a starting point for legal precedent. Laws and sausages, folks.

I will want a little more before I'm fully on-board to contribute, but for me, the "smell of alcohol" isn't a deal-breaker. We as CHL holders and/or instructors owe it to ourselves to see this thing through for the case law, regardless of whether we condone the actions, or agree with the accusations/verdicts involved.Case law, even case law we don't like, is a necessary starting point--even if it only serves for straight answers to our students and fellow CHL holders.

I know that there are those among us who practice the "0 tolerance" /' temperance mindset around carrying and drinking. And I will always agree that in that awful moment I would prefer to never have the question even come up, that is NOT how Texas law is written. Complete prohibition of alcohol while armed is *NOT* Texas statue -- if it were, the statute would look much more like Tennessee's law, which is a CLEAR abstinence/prohibition standard. Agree or disagree with that requirement as you will, there's no question as to the intent and application of such a position. If we (as Texans) prefer a 0-tolerance, no alcohol on-board statute, the law should be changed to reflect such. If we choose not to follow that standard, there MUST be an objective standard by which it is judged, and we MUST have case law to support it.

Again, I am not a lawyer, just an opinionated CHL holder and instructor who may or may not condone all legal behavior, but will defend another's legal right to engage in behavior.

[Slipknot]

Very well said Cbunt1. I like the way you think.

[chasfm11]

I know that there are those among us who practice the "0 tolerance" /' temperance mindset around carrying and drinking. And I will always agree that in that awful moment I would prefer to never have the question even come up, that is NOT how Texas law is written. Complete prohibition of alcohol while armed is *NOT* Texas statue -- if it were, the statute would look much more like Tennessee's law, which is a CLEAR abstinence/prohibition standard. Agree or disagree with that requirement as you will, there's no question as to the intent and application of such a position. If we (as Texans) prefer a 0-tolerance, no alcohol on-board statute, the law should be changed to reflect such. If we choose not to follow that standard, there MUST be an objective standard by which it is judged, and we MUST have case law to support it.

Again, I am not a lawyer, just an opinionated CHL holder and instructor who may or may not condone all legal behavior, but will defend another's legal right to engage in behavior.

I've been thinking about exactly that since this thread started. While it isn't the same as the soldier's case, I could see myself in similar circumstances. If I decide to have a toddy or nightcap, whichever name you choose to give it, before going to bed and some BG picks that night to break into my house, have I compromised my ability to defend myself? I don't think so. I would never go out of my house and drink alcohol while carrying, even a small glass of wine with dinner. But in the supposed sanctity of my own home, where the guns are always readily available, I make a different choice. An LEO responding to my house after a self-defense shooting would then be able to smell alcohol on my breath. I would hope that the standards for determining my condition would be higher than that, at least here in Texas.

[TexasGal]

My personal decision is zero tolerance for myself and I strongly recommend that, but I don't like the idea someone can have just the smell of alcohol and nothing else. It opens the door to abuse of power. Anyone could simply "say" a CHL holder smelled of alcohol. A blood sample sure would have helped in this case. As has been said, we need the law clarified for the sake of what we tell our students. If the guy was intoxicated, I am the first one to say he was clearly in the wrong. Period. But it does not appear that is the case so far. This is shaping up to be case law one way or the other.

[E.Marquez]

My personal decision is zero tolerance for myself and I strongly recommend that, but I don't like the idea someone can have just the smell of alcohol and nothing else. It opens the door to abuse of power. Anyone could simply "say" a CHL holder smelled of alcohol. A blood sample sure would have helped in this case. As has been said, we need the law clarified for the sake of what we tell our students. If the guy was intoxicated, I am the first one to say he was clearly in the wrong. Period. But it does not appear that is the case so far. This is shaping up to be case law one way or the other.

The law is clear... TPC states we can not carry and be intoxicated,

Texas Penal Code
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER

(d) 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 the TPC further defines the word intoxication.

PENAL CODETITLE 10. OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALSCHAPTER 49. INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSESSec. 49.01. DEFINITIONS. In this chapter:(1) "Alcohol concentration" means the number of grams of alcohol per:(A) 210 liters of breath;(B) 100 milliliters of blood; or(C) 67 milliliters of urine.(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.

I admit im not a lawyer.. so perhaps it's not as simple as I read it..

Perhaps becuase the words used in TPC sec 49.01 "DEFINITIONS. In this chapter:" invaladtes the use of that definition in other TPC chapters and sections.. like 46.035

The only grey area I see is in the LEOs determination of a person’s "not having the normal use of mental or physical faculties " This can be by observation, by field sobriety tests or I suppose by self incrimination (I only had half a bottle of the vodka)

From all reports so far I have been told…
Mr Simmons was not approached for or determined at the time of the event to be intoxicated. He was not giving a field sobriety test, or a blood or breathalyzer test to determine BAC.
Mr Simmons drove a motor vehicle to the hospital; this was clearly known by on scene LEO’s. Mr Simmons was not approached for, questioned for or apprehended for DUI.

[cbunt1]

This is shaping up to be case law one way or the other.

Agreed. When I discussed this very topic with the troopers in my instructor's class (offline) the impression I got was pretty much the same...no straight answer, so the simplest answer would be total abstinence removes it from the equation--and that, (IMHO) is why it is taught that way. It's been the source of much post-mortum equine percussion...

[E.Marquez]

Even safer, you cannot be charged with intentionally failing to conceal if you leave your gun at home and only carry the holster. Or better yet, never take the CHL course or submit your application for a CHL those both would be “the simplest answer”
Yet we chose every day to chose the lawful answer….
The Texas Penal Code in no way states abstinence from alcohol is required when carrying concealed.. It in fact states it is only a violation (in regards to alcohol) if you are carrying while intoxicated.. As that IS what the law states, I find it frustrating that law abiding, many time validated, citizens will choose to ignore the law as it is written and teach or propagate more severe self imposed restrictions.

[TexasGal]

As it stands now, the only way a person can be absolutely sure a beer had at noon will not get him in trouble going out that evening is just to not carry. If the mere smell of alcohol on one's body is enough to be determined "intoxicated" then abstinence is really the only plan (and no hugging of drunk people). The law does not say that, but it essentially amounts to it in practice if you want to be certain to stay out of trouble. There should be something to back up the charge besides just a smell reported by one officer. A field sobriety test in front of camera's, blood test, breath test, etc. I don't care if they make the blood alcohol benchmark lower than driving a car so long as there is something more concrete. It would reduce the temptation for abuse.

[E.Marquez]

BTW I agree, it would be better if the law required a definition of intoxicated in the same chapter as TPC 46.035, and if it was required to provide some standard form of proof of said intoxication.
However

As it stands now, the only way a person can be absolutely sure a beer had at noon will not get him in trouble going out that evening is just to not carry. If the mere smell of alcohol on one's body is enough to be determined "intoxicated" then abstinence is really the only plan (and no hugging of drunk people). The law does not say that, but it essentially amounts to it in practice

Is that what’s happened? Does anyone know ANY person who was arrested and charged at the time of contact with a violation of "Texas Penal Code
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER

(d) 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 said person was not legally intoxicated as determined by a field sobriety test or BAC chemical testing?

Anyone at all that has been arrested for this violation of "mere smell of alcohol on one's body "