Texas soldier faces legal battle over gun in hospitial

[E.Marquez]

Mr Glass called me yesterday..

As we surmised, the case was pushed to the right, past the 1st of the year.. Due to an overloaded court calendar.

Mr Glass continues to request I listen to the 911 tape, listen to the evidence that he can show me... and bring that back to whoever may be interested in reviewing it (though my observation,,, I can not have hard copys of any of it)... providing support if it meets a personal threshold for such.

If/ When this meeting takes place…. I’ll post up.


Erik

[C-dub]

Thanks for the update.

[mikedude]

Not gonna go to the trouble of looking it up but I think no alcohol testing is required to convict for public intoxication. The LEO's opinion is enough and if the security guy's testimony concurs this may create bigger problems for the CHL. Hoping that justice wins. (did I read one gal drank almost 4 bottles of wine by herself?)

Answers to a few posts:
You are correct. The chemical testing is for DWI. PI and consumption of alcohol by a minor do not require a test. It is merely the observation of the LEO, and smell of the odor along with any other indicators that may be present.

LEO's do not convict. They make an arrest based on probably cause. A judge or jury, depending on the type of trial convict.

I am confused on this case. How did they find out he was carrying a gun at the hospital? I would be curious to read the arrest report, along with HIS statement at the time of contact. Just a thought, but he may have admitted all sorts of stuff during contact and as such, that is why the DA upped the charges. The arrest affidavit would be a good source for this as well. All are public info.

[mikedude]

I have followed this just bit, reading here in the forum about this soldier. How was he charged in the first place under 30.06 if it is true that the hospital isn't posted? I can understand the intoxication charge added later, because that statute is both specific and purposely vague. There is much that is confusing and scary at the same time about this issue. Carry at a hospital is allowed, right? Unless posted? If this is indeed an issue of anti gun bias, I hope he prevails.

If you read though the whole thread,, you'll find that what appears to have happened is an unsupportable charge was originally made (ie violation of 30.06, as hospitals are no longer off limits unless posted, and this one was not posted) when that was pointed out to that ADA, that charge was dropped and amended to what he faces now.

The soldier was arrested and charged for an offense that did not exist at the time, and later the charge amended to reflect intoxication...thereby allowing this DA to continue harassing this man? Wow, this is very disturbing to me. I've seen posts that claim the charge is still UCW by a lic CHL, so I think there is still some misinformation out there. I can't speak for the first charge, but I can say this is why I'd never carry on the day that I drink. The police are not our friends and should not be treated as such. The officer was trolling for information and this poor guy gave it to him. I can remember a day when you could speak with a police officer, but that day has passed. Sad. I pray he is victorious.

I take offense to that. With the rational that "the police are not our friends and should be treated as such," then why all the comments throughout this forum and others about how the CHL got us off a ticket, ect? With that rational every CHL holder should get cited vs. getting a break. The officer wasn't trolling, he was doing the investigation to a call he received, and part of that would be to talk to the party involved. Charges get amended all the time by the DA's office. Charges get added, dropped, removed, ect. Have you ever thought that perhaps the officer gave the guy a break by not adding the alcohol portion and the DA decided to add it? No different then when an officer writes u a ticket for 70 in 55 vs the 88 you were actually doing. Happens all the time. They cut you some slack, you save a few bucks, and everybody leaves with good will thinking they were treated fair.

[E.Marquez]

I have followed this just bit, reading here in the forum about this soldier. How was he charged in the first place under 30.06 if it is true that the hospital isn't posted? I can understand the intoxication charge added later, because that statute is both specific and purposely vague. There is much that is confusing and scary at the same time about this issue. Carry at a hospital is allowed, right? Unless posted? If this is indeed an issue of anti gun bias, I hope he prevails.

If you read though the whole thread,, you'll find that what appears to have happened is an unsupportable charge was originally made (ie violation of 30.06, as hospitals are no longer off limits unless posted, and this one was not posted) when that was pointed out to that ADA, that charge was dropped and amended to what he faces now.

The soldier was arrested and charged for an offense that did not exist at the time, and later the charge amended to reflect intoxication...thereby allowing this DA to continue harassing this man? Wow, this is very disturbing to me. I've seen posts that claim the charge is still UCW by a lic CHL, so I think there is still some misinformation out there. I can't speak for the first charge, but I can say this is why I'd never carry on the day that I drink. The police are not our friends and should not be treated as such. The officer was trolling for information and this poor guy gave it to him. I can remember a day when you could speak with a police officer, but that day has passed. Sad. I pray he is victorious.

I take offense to that. With the rational that "the police are not our friends and should be treated as such," then why all the comments throughout this forum and others about how the CHL got us off a ticket, ect? With that rational every CHL holder should get cited vs. getting a break. The officer wasn't trolling, he was doing the investigation to a call he received, and part of that would be to talk to the party involved. Charges get amended all the time by the DA's office. Charges get added, dropped, removed, ect. Have you ever thought that perhaps the officer gave the guy a break by not adding the alcohol portion and the DA decided to add it? No different then when an officer writes u a ticket for 70 in 55 vs the 88 you were actually doing. Happens all the time. They cut you some slack, you save a few bucks, and everybody leaves with good will thinking they were treated fair.

Please don't bother, it's drivel from one person and he was rebuked already by Chas.

[DEB]

I take offense to that. With the rational that "the police are not our friends and should be treated as such," then why all the comments throughout this forum and others about how the CHL got us off a ticket, ect? With that rational every CHL holder should get cited vs. getting a break. The officer wasn't trolling, he was doing the investigation to a call he received, and part of that would be to talk to the party involved. Charges get amended all the time by the DA's office. Charges get added, dropped, removed, ect. Have you ever thought that perhaps the officer gave the guy a break by not adding the alcohol portion and the DA decided to add it? No different then when an officer writes u a ticket for 70 in 55 vs the 88 you were actually doing. Happens all the time. They cut you some slack, you save a few bucks, and everybody leaves with good will thinking they were treated fair.

Good point, no one, except for the SSG and the Officer knows exactly what happened. I do have my own thoughts on this, especially as I am retired military and have my own experiences about some interactions that take place next to Military Installations between Law Enforcement and members of the Military. I am, as are many others, watching this closely to see what the final outcome will be. Especially what is stated during the trial. I do commend the SSG for his courage in going to court and that has moved my opinion to be more in favor of what he is stating.

[E.Marquez]

The officer wasn't trolling, he was doing the investigation to a call he received,

The officer responded to a 911 call, placed by the accused.

and part of that would be to talk to the party involved.

Of course, contact was requested by the accused.

Charges get amended all the time by the DA's office. Charges get added, dropped, removed, ect.

The incorrect charge was dropped when and not until it was proven to the DA, there was no illegal act in bringing a legally carried concealed gun into the hospital, as the law required it to be posted and it was and still is not.
.. THEN and only THEN was the carrying while intoxicated charge added, and the other dropped.

Have you ever thought that perhaps the officer gave the guy a break by not adding the alcohol portion and the DA decided to add it?

Yes considered, researched, and NO that is not what happened from what info is available.

So let me paint the event as it is reported to have happened..

• Mr Sampson calls 911 for assistance, wife is having medication difficulties (it is not in dispute, Alcohol was consumed largely by the wife, leading to the medication issues, the man also states he had some wine over the curse of the night..)
  
  LEO/ EMS show up, man is asked for ID, shows DL/CHL....
  
  EMS states taking woman to Hosp. Mr Sampson says Im going, LEO tells him to leave his weapon at home as concealed hand guns even with CHL are not allowed in hospitals.
  
  Mr Sampson knows 2 things. .. 1: The hosp in question is not posted as of the last time he was there, 2: The officer is incorrect... as WE all know, HOSP are not off limits unless posted IAW 30.06
  
  Mr Sampson decides NOT to argue with LEO, knows the law, carry's anyway,, Tells EMS/LEO I will follow in my car...and does.
  
  Mr Sampson checks for 30.06 signage as he enters HOSP.. there is none, enters and attends to his wife.
  
  Mr Sampson is confronted by LEO if he is still carrying his concealed hand gun, Mr Sampson answers yes, and is charged with violation of 46.065 Carrying a concealed hand gun in a hospital... . Mr Sampson is arrested, jailed, forced to post bond.
  
  Mr Sampson and attorney meet with ADA, show that there was no violation of 46.065 Carrying a concealed hand gun in a hospital.. ADA disagrees and charge remains, meeting ends...
  
  Later ADA offers a reduced charge if Mr Sampson will plead guilty.. ... Mr Sampson refuses to plead it out.
  
  Attorney and Mr Sampson later notified 46.065 Carrying a concealed hand gun in a hospital has been dropped, and a new charge violation 46.065 Carrying a concealed hand gun while intoxicated has been added.

So lets recap.

-LEO states incorrectly that Mr Sampson can not carry in HOSP., Mr Sampson carry's anyway, knowing the law.
-LEO knows Mr Sampson is going to drive, then Mr Sampson does drive a vehicle to the HOSP.. No attempt to stop him from driving is made on scene, no contact or arrest is made at the HOSP for DUI.
-Mr Sampson is confirmed at HOSP to have a concealed hand gun, and arrested.
-Later offered lessor plea. Refused.
-The charge later amended to violation 46.065 Carrying a concealed hand gun while intoxicated.. a charge that would require the LEO observe and testify to Mr Sampson 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

-No Field sobriety tests were done at either the scene or HOSP.
-No blood alcohol testing was done at the HOSP, or later at the jail.
-No charge of DUI was ever added...

The officer and ADA are stating Mr Sampson was so intoxicated he did not have normal use of mental or physical faculties...the charge is supported by only the officers observation. Yet, Mr Sampson was allowed to drive, and not charged with DUI...even though he was SO INTOXICATED HE DID NOT HAVE NORMAL USE OF MENTAL OR PHYSICAL FACULTIES......

That is all just third part reporting. From what has been written, and what I have been TOLD by the lawyer, Mr Glass. If I have misstated anything and you have a contrary bit of info ..please post up.. I may have missed something, please included a link to you cite for clarity.

In the coming days I'm supposed to be able to hear the 911 call.
Read the arrest initial report.
Read the charging documents.
And my hope is I can confirm for myself some of what I have been told.

Looks like a Jury will decide on the validity of the charge, as the ADA thus far is unwilling to.

The only part I am at odds with as far as the LEO is concerned,,,, is the initial charge. Perhaps an honest mistake, and he had the best intentions of trying to keep Mr Sampson out of trouble with his initial advice at the scene.. . the rest of this is by and through the ADA far as I can tell.

I do not claim to know what happened...Im just reading and making educated assumptions based on the info at hand. The Jury may see more, or differently and prove Mr Sampson was guilty as charged.

[mikedude]

The officer wasn't trolling, he was doing the investigation to a call he received,

The officer responded to a 911 call, placed by the accused.

and part of that would be to talk to the party involved.

Of course, contact was requested by the accused.

Charges get amended all the time by the DA's office. Charges get added, dropped, removed, ect.

The incorrect charge was dropped when and not until it was proven to the DA, there was no illegal act in bringing a legally carried concealed gun into the hospital, as the law required it to be posted and it was and still is not.
.. THEN and only THEN was the carrying while intoxicated charge added, and the other dropped.

Have you ever thought that perhaps the officer gave the guy a break by not adding the alcohol portion and the DA decided to add it?

Yes considered, researched, and NO that is not what happened from what info is available.

So let me paint the event as it is reported to have happened..

• Mr Sampson calls 911 for assistance, wife is having medication difficulties (it is not in dispute, Alcohol was consumed largely by the wife, leading to the medication issues, the man also states he had some wine over the curse of the night..)
  
  LEO/ EMS show up, man is asked for ID, shows DL/CHL....
  
  EMS states taking woman to Hosp. Mr Sampson says Im going, LEO tells him to leave his weapon at home as concealed hand guns even with CHL are not allowed in hospitals.
  
  Mr Sampson knows 2 things. .. 1: The hosp in question is not posted as of the last time he was there, 2: The officer is incorrect... as WE all know, HOSP are not off limits unless posted IAW 30.06
  
  Mr Sampson decides NOT to argue with LEO, knows the law, carry's anyway,, Tells EMS/LEO I will follow in my car...and does.
  
  Mr Sampson checks for 30.06 signage as he enters HOSP.. there is none, enters and attends to his wife.
  
  Mr Sampson is confronted by LEO if he is still carrying his concealed hand gun, Mr Sampson answers yes, and is charged with violation of 46.065 Carrying a concealed hand gun in a hospital... . Mr Sampson is arrested, jailed, forced to post bond.
  
  Mr Sampson and attorney meet with ADA, show that there was no violation of 46.065 Carrying a concealed hand gun in a hospital.. ADA disagrees and charge remains, meeting ends...
  
  Later ADA offers a reduced charge if Mr Sampson will plead guilty.. ... Mr Sampson refuses to plead it out.
  
  Attorney and Mr Sampson later notified 46.065 Carrying a concealed hand gun in a hospital has been dropped, and a new charge violation 46.065 Carrying a concealed hand gun while intoxicated has been added.

So lets recap.

-LEO states incorrectly that Mr Sampson can not carry in HOSP., Mr Sampson carry's anyway, knowing the law.
-LEO knows Mr Sampson is going to drive, then Mr Sampson does drive a vehicle to the HOSP.. No attempt to stop him from driving is made on scene, no contact or arrest is made at the HOSP for DUI.
-Mr Sampson is confirmed at HOSP to have a concealed hand gun, and arrested.
-Later offered lessor plea. Refused.
-The charge later amended to violation 46.065 Carrying a concealed hand gun while intoxicated.. a charge that would require the LEO observe and testify to Mr Sampson 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

-No Field sobriety tests were done at either the scene or HOSP.
-No blood alcohol testing was done at the HOSP, or later at the jail.
-No charge of DUI was ever added...

The officer and ADA are stating Mr Sampson was so intoxicated he did not have normal use of mental or physical faculties...the charge is supported by only the officers observation. Yet, Mr Sampson was allowed to drive, and not charged with DUI...even though he was SO INTOXICATED HE DID NOT HAVE NORMAL USE OF MENTAL OR PHYSICAL FACULTIES......

That is all just third part reporting. From what has been written, and what I have been TOLD by the lawyer, Mr Glass. If I have misstated anything and you have a contrary bit of info ..please post up.. I may have missed something, please included a link to you cite for clarity.

In the coming days I'm supposed to be able to hear the 911 call.
Read the arrest initial report.
Read the charging documents.
And my hope is I can confirm for myself some of what I have been told.

Looks like a Jury will decide on the validity of the charge, as the ADA thus far is unwilling to.

The only part I am at odds with as far as the LEO is concerned,,,, is the initial charge. Perhaps an honest mistake, and he had the best intentions of trying to keep Mr Sampson out of trouble with his initial advice at the scene.. . the rest of this is by and through the ADA far as I can tell.

I do not claim to know what happened...Im just reading and making educated assumptions based on the info at hand. The Jury may see more, or differently and prove Mr Sampson was guilty as charged.

First off this is all hearsay. Only the parties present know what happened. Do I believe what a lawyer is stating that wants his client not guilty? Not really. I have personally seen what defense and civil lawyers will say to get their clients off that is so far from the truth they could even make Obama sound like a good president. I would guess ahead of time that the 911 call isn't going to reveal anything other then a call for a medical aid.

There are no sobriety tests for a case like this. They are only done for DWI. The suspect was even't charged by the officer for an alcohol violation. In addition, to make a DWI, somebody has to put the suspect behind the wheel. There is no % for the CHL issue last I read so the .08 is mute in this case. Technically that is for driving offenses.

Pretty much 99% of every cases has a plea offer. That is how the system works.

As stated before, I would be curious to read the actual affidavit and statements. That is what will be used in this case. Do I want to see this guy convicted by the system? I don't know enough to say as I wasn't there. The jury will hear all the facts if it goes that far. Hopefully for the Sgt. it won't. He served his country and deserves a break.

[Keith B]

There are no sobriety tests for a case like this. They are only done for DWI. The suspect was even't charged by the officer for an alcohol violation. In addition, to make a DWI, somebody has to put the suspect behind the wheel. There is no % for the CHL issue last I read so the .08 is mute in this case. Technically that is for driving offenses.

Wrong.

TPC 49 applies to intoxication offenses in Texas PERIOD unless specifically specified in the chapter/section as different. In TPC 46 the only place that has something stated differently is 46.06 which is for 'Unlawful Transfer of Certain Weapons'.

In TPC 49.01, which defines intoxication applies for PI, DWI, CHL, etc it states:

(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.

So, a person could be charged with DWI by section (A) and be under .08 BAC, or a CHL holder could be charged with carrying while intoxicated because their BAC was at .08 or above.

[philip964]

Well I'm visiting this for maybe the first time in quite a while. I was wondering why this had grown to 15 pages. Now I see.

On the surface this smells. I'm glad he is requesting a trial.

The DA must not have much to do and feel pretty secure in his job.

[Heartland Patriot]

I'm going to relate a story I heard a while back only to highlight something. Its about a family whose son was off attending college and was arrested at a party for trafficking in illegal drugs, and later convicted of the charge. I don't know the county, and I don't even know the individual, to be honest. The son did have illegal drugs, a small amount, just like several others at the party at his apartment also had small amounts of illegal drugs. Law enforcement was called due to a disturbance at the party. When they got there, they didn't like what they found and did a search and had the individuals empty pockets...all the drugs went on the table together...since the amount of drugs was now a larger amount, the individual who resided at the apartment got busted on the trafficking charge...I'd imagine it looked a lot better on someones record than just busting a few users with "recreational" amounts plus it was something that would "stick". Additionally, the other individuals who had drugs on them had all charges dismissed in exchange for statements saying the drugs all belonged to the guy who resided at the apartment. No "honor among thieves", or druggies for that matter, I guess. Now, I don't like illegal drugs, I don't do (and have NEVER done) illegal drugs, and I won't tolerate them in my home. I'm not saying those individuals, ALL of them who had illegal drugs, shouldn't have gotten busted. They certainly should have, including the guy who resided there. But I don't like the law being bent to make someone's job performance look better, either. I'm not 100% sure that is what happened in this case of the soldier in question, but if he was intoxicated enough to charge him later, or at least they felt he was, he should have been told to NOT drive his POV to the hospital. And he should have been arrested and charged for intoxicated driving while at the hospital, if that indeed were the case. Trading one charge for another, and thus seemingly bending the law to score a "win", just ain't right.

[mikedude]

There are no sobriety tests for a case like this. They are only done for DWI. The suspect was even't charged by the officer for an alcohol violation. In addition, to make a DWI, somebody has to put the suspect behind the wheel. There is no % for the CHL issue last I read so the .08 is mute in this case. Technically that is for driving offenses.

Wrong.

TPC 49 applies to intoxication offenses in Texas PERIOD unless specifically specified in the chapter/section as different. In TPC 46 the only place that has something stated differently is 46.06 which is for 'Unlawful Transfer of Certain Weapons'.

In TPC 49.01, which defines intoxication applies for PI, DWI, CHL, etc it states:

(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.

So, a person could be charged with DWI by section (A) and be under .08 BAC, or a CHL holder could be charged with carrying while intoxicated because their BAC was at .08 or above.

Sorry but I gotta disagree. I have been quoted the law for years on patrol. Black and white does not mean that is how it is interpreted or even enforced. There is the spirit and letter of the law. Just read the section above that you posted. Section A does not require section B. PI's only need section A. In addition, based on the language, there is no chemical test or breath test to determine a BAC for enforcement of that section which means that BAC tests are not done hence you do not need to be a .08 for a PI (public intox) or other non dwi alcohol violations. The person merely meets the section, which is basically they cannot care for their safety or the safety of others due to their intoxicated state. ANYBODY, including a CHL holder (as you stated) could be charged with carrying while intoxicated because their BAC was at .08 or above** When making a DWI arrest, you are making an arrest based on probable cause that the person you believe that the person you stopped is driving while .08 or above. The chemical test is then done after the arrest to support that finding, or in cases, prove the driver was not .08. Take consumption of alcohol by a minor. The smell alone is all you need if you want to enforce that section (not that I necessarily agree). That would be similar to this case in question. Again I await the facts of the case which will come out IF there is a trial.Has anybody even done an open records request for the affidavit and report to see what was actually done, written and found? I too have concerns for the baby if the pregnant mom is getting hammered. That is not a police function, nor social services (CPS) function until the baby is born.

[Keith B]

There are no sobriety tests for a case like this. They are only done for DWI. The suspect was even't charged by the officer for an alcohol violation. In addition, to make a DWI, somebody has to put the suspect behind the wheel. There is no % for the CHL issue last I read so the .08 is mute in this case. Technically that is for driving offenses.

Wrong.

TPC 49 applies to intoxication offenses in Texas PERIOD unless specifically specified in the chapter/section as different. In TPC 46 the only place that has something stated differently is 46.06 which is for 'Unlawful Transfer of Certain Weapons'.

In TPC 49.01, which defines intoxication applies for PI, DWI, CHL, etc it states:

(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.

So, a person could be charged with DWI by section (A) and be under .08 BAC, or a CHL holder could be charged with carrying while intoxicated because their BAC was at .08 or above.

Sorry but I gotta disagree. Just read the section above that you posted. Section A does not require section B. PI's only need section A. In addition, based on the language, there is no chemical test or breath test to determine a BAC for enforcement of that section which means that BAC tests are not done hence you do not need to be a .08 for a PI (public intox) or other non dwi alcohol violations. The person merely meets the section, which is basically they cannot care for their safety or the safety of others due to their intoxicated state. ANYBODY, including a CHL holder (as you stated) could be charged with carrying while intoxicated because their BAC was at .08 or above** When making a DWI arrest, you are making an arrest based on probable cause that the person you believe that the person you stopped is driving while .08 or above. The chemical test is then done after the arrest to support that finding, or in cases, prove the driver was not .08.

You are not understanding what I am saying. I am saying PI, DWI, Intoxicated CHL can be charged by meeting EITHER section A or B. PC for a DWI does not have to be >.08 BAC. DWI can be a alcohol, other intoxicants, or a combination. A failed FST do to HGN, slurred speach, falling down, etc is enough PC to arrest. You do not have to blow .08, the requirements in section A can be enough. So, you can be charged and convicted of DWI under section A, or you can be arrested for carrying while intoxicated because you blew more than .08 and met section B. They are interchangable for ALL intoxicaiton offenses.

[mikedude]

There are no sobriety tests for a case like this. They are only done for DWI. The suspect was even't charged by the officer for an alcohol violation. In addition, to make a DWI, somebody has to put the suspect behind the wheel. There is no % for the CHL issue last I read so the .08 is mute in this case. Technically that is for driving offenses.

Wrong.

TPC 49 applies to intoxication offenses in Texas PERIOD unless specifically specified in the chapter/section as different. In TPC 46 the only place that has something stated differently is 46.06 which is for 'Unlawful Transfer of Certain Weapons'.

In TPC 49.01, which defines intoxication applies for PI, DWI, CHL, etc it states:

(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.

So, a person could be charged with DWI by section (A) and be under .08 BAC, or a CHL holder could be charged with carrying while intoxicated because their BAC was at .08 or above.

Sorry but I gotta disagree. Just read the section above that you posted. Section A does not require section B. PI's only need section A. In addition, based on the language, there is no chemical test or breath test to determine a BAC for enforcement of that section which means that BAC tests are not done hence you do not need to be a .08 for a PI (public intox) or other non dwi alcohol violations. The person merely meets the section, which is basically they cannot care for their safety or the safety of others due to their intoxicated state. ANYBODY, including a CHL holder (as you stated) could be charged with carrying while intoxicated because their BAC was at .08 or above** When making a DWI arrest, you are making an arrest based on probable cause that the person you believe that the person you stopped is driving while .08 or above. The chemical test is then done after the arrest to support that finding, or in cases, prove the driver was not .08.

You are not understanding what I am saying. I am saying PI, DWI, Intoxicated CHL can be charged by meeting EITHER section A or B. PC for a DWI does not have to be >.08 BAC. DWI can be a alcohol, other intoxicants, or a combination. A failed FST do to HGN, slurred speach, falling down, etc is enough PC to arrest. You do not have to blow .08, the requirements in section A can be enough. So, you can be charged and convicted of DWI under section A, or you can be arrested for carrying while intoxicated because you blew more than .08 and met section B. They are interchangable for ALL intoxicaiton offenses.

I understand, but disagree. I know what the requirements are for arresting these offenses as I do this for a living. While that may be what is written in black and white, that is not how it is enforced in the field or courts. There are certain requirements to make the arrest. Take a public intoxication incident. One can be a .08 BAC and still maintain their functions as described in section A. The .08 is the national standard for driving related offenses. For PI one basically cannot care for their safety or the safety of others. If they didn't fall under section A, they would not be arrested. Section B would not be known because they would have never been administered a chemical/breath test. Additionally if they were not driving, or violating section A, there is no basis for an arrest. Tests are not administered for PI and other non DWI offenses. Sure technically a DWI could be charged under a .08, but that would have special circumstances, a combo with drugs, ect. From what I have read in this case we have not seen anything to describe that. I read he smelled of the odor of an alcoholic beverage, which on it's own, "could" be enough for violating the CHL rule. Not saying it is, but could. Just the smell w/o other objective symptoms, driving observations, ect would not be enough for any DWI charge. Again lets see the reports and affidavits to discuss facts vs. internet hype. Very interesting case.

Whomever is talking to this attorney should ask for copies of this case. They may not want that released as that is the factual information of the incident.

[Keith B]

I understand, but disagree. I know what the requirements are for arresting these offenses as I do this for a living. While that may be what is written in black and white, that is not how it is enforced in the field or courts. There are certain requirements to make the arrest. Take a public intoxication incident. One can be a .08 BAC and still maintain their functions as described in section A. The .08 is the national standard for driving related offenses. For PI one basically cannot care for their safety or the safety of others. If they didn't fall under section A, they would not be arrested. Section B would not be known because they would have never been administered a chemical/breath test. Additionally if they were not driving, or violating section A, there is no basis for an arrest. Tests are not administered for PI and other non DWI offenses. Sure technically a DWI could be charged under a .08, but that would have special circumstances, a combo with drugs, ect. From what I have read in this case we have not seen anything to describe that. I read he smelled of the odor of an alcoholic beverage, which on it's own, "could" be enough for violating the CHL rule. Not saying it is, but could. Just the smell w/o other objective symptoms, driving observations, ect would not be enough for any DWI charge. Again lets see the reports and affidavits to discuss facts vs. internet hype. Very interesting case.

Whomever is talking to this attorney should ask for copies of this case. They may not want that released as that is the factual information of the incident.

No, this may be how YOUR department handles PI offenses, but legally if you want to charge someone with it then >.08 would be a defacto that says they ARE intoxicated, period. It says no where that .08 only applies to driving only and that section A does not aply to PI or DWI. Point it out to me where it does? There have been many cases of DWI of other types like PC from smell of marijuana or bloodshot eyes and failed FST with a lower than .08 BAC have been made.

For CHL, as in PI, if they are .08 or above, but showing no signs of imparment, they are still legally intoxicated per TPC 46.035. See the definition for a CHL under subsection H 411 government code that specifically points to 49.01 as the definition. That ways if you are imparied (section A), then you are intoxicated, OR if you are >.08 (section B) even if not visually impared, you are intoxicated.

In this case, if there was no BAC taken, then it will be up to the officer ot prove the individual was impaired (49.01 section A) and met the legal deifnition of intoxicated.