Texas soldier faces legal battle over gun in hospitial

[jmra]

Well, it will be very interesting to see how this plays out.

What we know:
1. The police responded to the home (along with medical personnel) for an Alcohol related event.
2. The individual in question admitted that he had at some point earlier consumed Alcohol.
3. The arresting officer stated that he smelled Alcohol on the breath of the individual in question.
4. There is no indication (from the information provided) that any tests were conducted to determine a blood Alcohol content level.
5. The individual is being charged with carry while intoxicated even though apparently no tests were conducted. These tests are typically required in order to prove intoxication for other offenses such as DWI.

So, we may finally have case law that more clearly defines intoxicated/impaired as it applies to CHL. If, as some have stated, Intoxicated carries the same legal meaning for CHL as it does for DWI (.08 I think) then this should be an open and shut case.
The flip side of the coin is the possibility that the court rules that what we have been told by many instructors is in fact correct - that the consumption of any alcohol can constitute an offense.

[Oldgringo]

At the risk of sounding trite {and self-righteous}, alcohol and gunpowder do not mix well.

[The Annoyed Man]

Well, it will be very interesting to see how this plays out.

What we know:
1. The police responded to the home (along with medical personnel) for an Alcohol related event.
2. The individual in question admitted that he had at some point earlier consumed Alcohol.
3. The arresting officer stated that he smelled Alcohol on the breath of the individual in question.
4. There is no indication (from the information provided) that any tests were conducted to determine a blood Alcohol content level.
5. The individual is being charged with carry while intoxicated even though apparently no tests were conducted. These tests are typically required in order to prove intoxication for other offenses such as DWI.

So, we may finally have case law that more clearly defines intoxicated/impaired as it applies to CHL. If, as some have stated, Intoxicated carries the same legal meaning for CHL as it does for DWI (.08 I think) then this should be an open and shut case.
The flip side of the coin is the possibility that the court rules that what we have been told by many instructors is in fact correct - that the consumption of any alcohol can constitute an offense.

Well alcohol would explain the arrest. Kind of changes things if it's true.

[C-dub]

I don't think he wasn't arrested for being under the influence. I think that was tacked on latter.

BAC of .08 is not needed for conviction, it just makes it easier or a certainty.

A LEO that is not an employee of a particular business has no authority to give oral notice prohibiting a person from carrying under the authority of their CHL from that business if it is not otherwise illegal or posted with a proper 30.06 sign. The security guard could have given oral notice, but he wouldn't have known anything had the LEO not informed him and even then the Sergeant was never really notified by the security guard and given the chance to leave. At least from what we know so far.

[jmra]

I don't think he wasn't arrested for being under the influence. I think that was tacked on latter.

BAC of .08 is not needed for conviction, it just makes it easier or a certainty.

A LEO that is not an employee of a particular business has no authority to give oral notice prohibiting a person from carrying under the authority of their CHL from that business if it is not otherwise illegal or posted with a proper 30.06 sign. The security guard could have given oral notice, but he wouldn't have known anything had the LEO not informed him and even then the Sergeant was never really notified by the security guard and given the chance to leave. At least from what we know so far.

The charge was tacked on later after he refused to a plea on the original charge. It does appear in the original report (based on what we have) that the officer noted that the individual in question and the girl friend (now wife) consumed a number of bottles of wine together and that the officer smelled Alcohol on his breath.

I would contend that they were hoping he would plea so they didn't have to go the intoxicated route.

Regardless, the individual in question has put himself in a very difficult situation. He has admitted to the consumption of Alcohol which gives at least some credibility to the officer's claim of Alcohol on his breath.

I would not want to be in his shoes. Of course I don't have to worry about that as I do not partake.

[sjfcontrol]

Well, it will be very interesting to see how this plays out.



So, we may finally have case law that more clearly defines intoxicated/impaired as it applies to CHL. If, as some have stated, Intoxicated carries the same legal meaning for CHL as it does for DWI (.08 I think) then this should be an open and shut case.
The flip side of the coin is the possibility that the court rules that what we have been told by many instructors is in fact correct - that the consumption of any alcohol can constitute an offense.

Any amount of alcohol or other substances can be used for conviction for either CHL or DWI. If you are over 0.08, you are presumed intoxicated. If you are under, other evidence will be used in court to determine if you are intoxicated, including LEO testimony.

[jmra]

Well, it will be very interesting to see how this plays out.



So, we may finally have case law that more clearly defines intoxicated/impaired as it applies to CHL. If, as some have stated, Intoxicated carries the same legal meaning for CHL as it does for DWI (.08 I think) then this should be an open and shut case.
The flip side of the coin is the possibility that the court rules that what we have been told by many instructors is in fact correct - that the consumption of any alcohol can constitute an offense.

Any amount of alcohol or other substances can be used for conviction for either CHL or DWI. If you are over 0.08, you are presumed intoxicated. If you are under, other evidence will be used in court to determine if you are intoxicated, including LEO testimony.

I agree. But it is my understanding that few if any DAs will take DWI cases without breathalyzer, blood tests, or at least video evidence of some sort of sobriety test. Of course I have no first hand experience here so I could be completely mistaken.

[WildBill]

Well, it will be very interesting to see how this plays out.



So, we may finally have case law that more clearly defines intoxicated/impaired as it applies to CHL. If, as some have stated, Intoxicated carries the same legal meaning for CHL as it does for DWI (.08 I think) then this should be an open and shut case.
The flip side of the coin is the possibility that the court rules that what we have been told by many instructors is in fact correct - that the consumption of any alcohol can constitute an offense.

Any amount of alcohol or other substances can be used for conviction for either CHL or DWI. If you are over 0.08, you are presumed intoxicated. If you are under, other evidence will be used in court to determine if you are intoxicated, including LEO testimony.

I agree. But it is my understanding that few if any DAs will take DWI cases without breathalyzer, blood tests, or at least video evidence of some sort of sobriety test. Of course I have no first hand experience here so I could be completely mistaken.

DAs generally don't take cases that they don't think they can win. It makes them look bad. It sounds like the alcohol charge was added so he could present more evidence and another possible guilty verdict. It could also be a strategy to show that he wasn't thinking clearly because of the alcohol or he was just a bad guy because he disobeyed the police who told him to leave his gun at home.

The good part for the DA [or maybe the defendant] is that there should be many witnesses at the hospital. Maybe even some doctors or nurses who are trained to observe and diagnose intoxicated people. They proably wouldn't want to testify, but who knows? This is going to be an interesting case to follow. I hope that they continue to report the status.

[sjfcontrol]

Well, it will be very interesting to see how this plays out.



So, we may finally have case law that more clearly defines intoxicated/impaired as it applies to CHL. If, as some have stated, Intoxicated carries the same legal meaning for CHL as it does for DWI (.08 I think) then this should be an open and shut case.
The flip side of the coin is the possibility that the court rules that what we have been told by many instructors is in fact correct - that the consumption of any alcohol can constitute an offense.

Any amount of alcohol or other substances can be used for conviction for either CHL or DWI. If you are over 0.08, you are presumed intoxicated. If you are under, other evidence will be used in court to determine if you are intoxicated, including LEO testimony.

I agree. But it is my understanding that few if any DAs will take DWI cases without breathalyzer, blood tests, or at least video evidence of some sort of sobriety test. Of course I have no first hand experience here so I could be completely mistaken.

No, that sounds right. To prove intoxication in court "should" take more than the smell of alcohol on the breath, as that by itself does not indicate imparement. And DAs want to win to improve their numbers. Taking on questionable cases does not help their conviction rates. That should apply to both DWI and CHL cases.

[2farnorth]

Side note that I'm not sure anyone has considered--and I didn't see it mentioned. Legal assistance is free if you are military and use military lawyers. That said, if I were him and I was innocent, I would fight the case too. I'd have nothing to lose monetarily other than what would be lost anyway (the TRP). He can afford to ride it out.

I hope he is innocent. I hope they hammer the arresting officer and use this as an opportunity to familiarize the rest of the state with Concealed Handgun Laws. And if this guy wins... legal precedence. I'm ok with that too.

If I recall correctly most military lawyers only practice military law. They are not allowed to practice on the civilian side except to advise on military matters.

[E.Marquez]

Side note that I'm not sure anyone has considered--and I didn't see it mentioned. Legal assistance is free if you are military and use military lawyers. That said, if I were him and I was innocent, I would fight the case too. I'd have nothing to lose monetarily other than what would be lost anyway (the TRP). He can afford to ride it out.

I hope he is innocent. I hope they hammer the arresting officer and use this as an opportunity to familiarize the rest of the state with Concealed Handgun Laws. And if this guy wins... legal precedence. I'm ok with that too.

If I recall correctly most military lawyers only practice military law. They are not allowed to practice on the civilian side except to advise on military matters.

No, not really.
Each major Unit will often have one or more staff lawyers that are licensed in the state of assignment.
It's not a requirement that I know of, but is an ideal situation as I understand it.

Timing, rate of turnover, length of time in an assignment and the personal opinion of Staff Judge Advocate for that Division or larger unit all play in to if a Military lawyer has passed the approved certifications , regulations ect ect to practice law in that state.

[mlawler]

Why am I the only one to point out:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person.
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

If he's the guy who's supposed to explain Texas laws to soldiers, he should know that a 30.06 notice is NOT required at a hospital.

[Dave2]

Why am I the only one to point out:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person.
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

If he's the guy who's supposed to explain Texas laws to soldiers, he should know that a 30.06 notice is NOT required at a hospital.

Because the law goes on to say that section doesn't apply unless proper notice is given.

[sjfcontrol]

Why am I the only one to point out:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person.
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
(2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

If he's the guy who's supposed to explain Texas laws to soldiers, he should know that a 30.06 notice is NOT required at a hospital.

Because you're the only one not to read down to section (i)?

[The Annoyed Man]

If he's the guy who's supposed to explain Texas laws to soldiers, he should know that a 30.06 notice is NOT required at a hospital.

YES, it is required if you want to keep someone out. Read further down in the law.

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.

• (b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:
  
  • (4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;

• (i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.