Question I should have asked in class

[PR1042]

Do you want to leave the fate of your record/CHL in the hands of an officer and his/her discretion?

[powerboatr]

0.08 is not rebuttable evidence that you are intoxicated. It is the legal definition of intoxicated. So if you are (0.08), you are (intoxicated).

I've posted this before, but I'll say it again. The legal definition of intoxicated is the same under the CHL law (46.035) as it is under the DWI law. So I'd recommend not driving your car if you've had "too many" to carry (under your CHL). The standard for conviction is the same for both. It is not as some contend... 0.01 or "what the cop thinks", it's the standard set out in PC 49.01. It is up to the prosecution to prove you are intoxicated under this standard, not up to you to prove you weren't.

That said, you should never carry under your CHL while intoxicated becasue it is against the law. However, I'm always surprised by the overwhelming majority of self-described teetotalers that break out whenever CHL and a drink comes up. You'd think this was the Women's Christian Temperance League (WCTL?) Forum....

It is legal to carry (under CHL) if you are not intoxicated and it is legal to drive if you are not intoxicated. In fact, it's technically legal (though not a good idea) to carry in your home even if you are intoxicated.

and if your arrested and found to be not guilty......you still were ARRESTED and JAILED and paid ton of $$ to defend your case.....so who lost?
I drink,
I dont drive if i have even ONE
I dont carry if i may be drinking
my lifestyle choices pretty much don't let me frequent places that i would routinely need a firearm if i was drinking.

dui/dwi fines and jail time are not SEVERE enough, if they had teeth , we wouldn't be having this discussion
if you get popped for dui. you go to jail for 20 years in bolivia,
after we cut off your arms, and sell your possessions, and ruin your life, like the poor sob that got hit by you while you were intoxicated doing 100 through town and stop signs and now is dead or paralyzed.

having a chl is a privilege, and we must protect that privilege. So we as chl holders shall live above reproach.
imagine the headlines
chl holder drunk and hits a bus of kids unloading at a bus stop........

[ScottDLS]

There are a number of conditions under which you are statistically more dangerous driving than someone who has had one drink. Tired, talking on the phone, tuning the radio, arguing with the kids... We don't have a 20 year sentence for those activities.

I don't drive or carry when I'm intoxicated becasue it's illegal. Actually, I don't get intoxicated...but I do drink alcohol on occasion. If one drink made the average person intoxicated then it would be illegal to sell any drinks for on-site consumption anywhere.That's because public intoxication is illegal, and the standard for PI is the same as for driving and carrying under CHL.

[Bart]

I dont carry if i may be drinking
my lifestyle choices pretty much don't let me frequent places that i would routinely need a firearm if i was drinking.

and if you're arrested and found not guilty......you still were ARRESTED and JAILED and paid ton of $$ to defend your case.....so who won?

[powerboatr]

and if you're arrested and found not guilty......you still were ARRESTED and JAILED and paid ton of $$ to defend your case.....so who won?

the man does.
you can be arrested for not committing a crime because the leo feels he/she is in their rights based on the situation.....
then you spend a few days in the clink, waiting to be arraigned then get bail then if the judge decides you still may have to go back to court to get it dismissed
but you get dismissed and you still paid out tons of money for being innocent/not guilty/dismissed
oh yes sue the leo for false arrest.....got more money to throw away???? this isn't tv so unless you make a million, you loose
so in the end you get bent over. so its best to avoid situations that may lead you to jail......??

distractions... i saw a person reading a kindle in traffic......and they were driving??????

[gigag04]

the standard for PI is the same as for driving and carrying under CHL.

Disagree entirely. The elements are very different.

PC 49 defines intoxication as:
(

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.

Elements for PI:

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Emphasis added. It is not illegal to merely be intoxicated, you must present a danger to yourself or others AND be intoxicated.


Elements for DWI:

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

Person must be intoxicated, driving a vehicle, AND in a public place. Different elements.


PI requires the arresting officer to prove up the element of HOW the subject was a danger to themself or others....

A few examples:

-passed out in the middle of a street/parking lot/alley
-stumbling into traffic
-doesn't know where they are and can't get a ride

There are plenty of other ways to get there. It is, however, a very different standard than DWI. On a DWI if you can prove that person was driving a vehicle, the driving was in a public place, and they were intoxicated then you meet the elements. If a person is walking down the street, legally intoxicated (as in meeting the legal definition), but is very aware, coherent, and reasonable, that subject does not meet the danger element of the PI statute.

I can only speculate, that a CWI (carrying WI) charge would more closely resemble a DWI investigation than a PI investigation.


Splitting hairs, maybe.....but it's free.

[ScottDLS]

Hi Gigag -

You are correct. I missed that the elements of the offense for PI are different than for DWI and PC 46.035... CWI? PI adds the additional element that the person must have been a danger to himself and others.

My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

[Originalist]

My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

and well said!

[Jumping Frog]

However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

I'd also like to add that there are decades of applicable case law defining how intoxicated must be proven in a court of law. There are many attorneys that have DUI defense as a large part of their income. Ask any of them and they will be the first to tell you that it is ten times easier for them to defend someone charged with intoxication. That in large part is why they changed the law to define add the specification that 0.08% will be regarded as proof of intoxication.

[LAYGO]

having a chl is a privilege, and we must protect that privilege. So we as chl holders shall live above reproach.

I agree . . .

dui/dwi fines and jail time are not SEVERE enough, if they had teeth , we wouldn't be having this discussion
if you get popped for dui. you go to jail for 20 years in bolivia,
after we cut off your arms, and sell your possessions, and ruin your life, like the poor sob that got hit by you while you were intoxicated doing 100 through town and stop signs and now is dead or paralyzed.

imagine the headlines
chl holder drunk and hits a bus of kids unloading at a bus stop........

. . . but can we be reasonable? This sounds like the same kind of paranoid LEO that will disarm all CHL carriers because of their own idea/political beliefs.

[Ameer]

The penalty for carrying a badge and a handgun while intoxicated should be more severe than the penalty for carrying a handgun while intoxicated.

[Oldgringo]

My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

and well said!

What's the problem? You're only talking about a few dollars and a little of your time to establish your sobriety and prove that the arresting LEO is wrong. Go for it!

[ScottDLS]

My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

and well said!

What's the problem? You're only talking about a few dollars and a little of your time to establish your sobriety and prove that the arresting LEO is wrong. Go for it!

Or I could never leave the house for fear of arrest for something that isn't illegal. After all, carrying with a CHL is only a Defense to Prosecution for UCW (46.02).

At least 46.035(d) has to be proven beyond a reasonable doubt by the prosecution.

[Oldgringo]

My real point was that the statutory defintion of intoxication was the same for DWI, PC 46.035, and arguably PI. The defintion applies to the whole PC "chapter" 49. In other words, if you couldn't legally establish that the person was intoxicated then the "danger" element would be irrelevant.

I also take exception with the statement (not yours) that intoxication is defined at the discretion of a Peace Officer. The decision to arrest a person for some intoxication offense may be at the Peace Officer's discretion, as it is for many offenses. However, the definition of intoxication is in the law and must be established as a fact at trial if it is an element of the offense.

and well said!

What's the problem? You're only talking about a few dollars and a little of your time to establish your sobriety and prove that the arresting LEO is wrong. Go for it!

Or I could never leave the house for fear of arrest for something that isn't illegal. After all, carrying with a CHL is only a Defense to Prosecution for UCW (46.02).

At least 46.035(d) has to be proven beyond a reasonable doubt by the prosecution.

Choices, it's all about choices...and money. Go for it!

[Cobra Medic]

What's the problem? You're only talking about a few dollars and a little of your time to establish your sobriety and prove that the arresting LEO is wrong. Go for it!

See the blog for the rest of the tips. Warning: profanity
http://blogs.houstonpress.com/hairballs ... arrest.php" onclick="window.open(this.href);return false;