Texas soldier faces legal battle over gun in hospitial

[alphonso]

I personally practice the airplane pilot's rule "twelve hours between the bottle and the throttle" when it comes to drinking and then carrying a gun.

I do this in part because of the vagaries of the Texas law for intoxication and CHL. I wish the law was more precisely spelled out at .08 percent--or any other number. Once and a while I would like to have a beer with my BBQ or Mexican food at at restaurant, but will not because of the possibility of being stopped with alcohol on my breath.

Does anyone know (or care to hazard a guess) why the rule for drinking and carrying was not as precisely spelled out as the drinking and driving rules?

[Oldgringo]

I personally practice the airplane pilot's rule "twelve hours between the bottle and the throttle" when it comes to drinking and then carrying a gun.

I do this in part because of the vagaries of the Texas law for intoxication and CHL. I wish the law was more precisely spelled out at .08 percent--or any other number. Once and a while I would like to have a beer with my BBQ or Mexican food at at restaurant, but will not because of the possibility of being stopped with alcohol on my breath.

Does anyone know (or care to hazard a guess) why the rule for drinking and carrying was not as precisely spelled out as the drinking and driving rules?

My decision to forego an adult beverage when eating out has little to do with my CHL. It's all about cost! I can have a nice water with my meal, leave the establishment and drive home without worry about the legalities of drinking, driving and/or carrying.

Once home, I lock up, park my carry, grab an adult movie or MSNBC News (same difference), a family-size jar of hooch and guzzle until bed time. What's the problem?

[MasterOfNone]

Does anyone know (or care to hazard a guess) why the rule for drinking and carrying was not as precisely spelled out as the drinking and driving rules?

Don't both statutes use the definition in 49.01?

[G26ster]

I personally practice the airplane pilot's rule "twelve hours between the bottle and the throttle" when it comes to drinking and then carrying a gun.

That's 4 hours more than FAR 91.17 requires (8 hours bottle to throttle), but hey, your rule is safer

[Jumping Frog]

Does anyone know (or care to hazard a guess) why the rule for drinking and carrying was not as precisely spelled out as the drinking and driving rules?

Don't both statutes use the definition in 49.01?

In my opinion, since the definition is the same whether driving while intoxicated or carrying a firearm while intoxicated, they should both be required to demonstrate the same standard of proof at trial.

Now, there isn't a lot of case law on carrying firearms while intoxicated, but there sure is an awful lot of case law regarding proving intoxication beyond a reasonable doubt when driving.

There are DUI lawyers who have made a very nice living knowing the intricacies of drunk driving, standards of proof, and how to defend effectively against the charges.

In fact, DUI lawyers were so successful in defending against DUI, that is when they changed to law to say if a person met a certain blood alcohol level, that was sufficient proof of intoxication.

I've had lawyers tell me it is definitely to our advantage that a blood alcohol limit has not been applied to firearms. It is easier to defend against the subjective standard.

[srothstein]

Does anyone know (or care to hazard a guess) why the rule for drinking and carrying was not as precisely spelled out as the drinking and driving rules?

Actually, the definition is carefully spelled out, but you have to understand the way the law works, including other codes.

In this case, the Code Construction Act, which is now part of the Government Code (chapter 311), tells us what to do. In section 311.011, the instruction is to use the common meaning of a word unless it has acquired a technical meaning, by legislative action or otherwise.

So, if intoxication is not defined, we take the common meaning. I am confident that the common meaning of this word is the meaning as defined in Chapter 49. Most people will use other words to indicate various degrees of intoxication, such as buzzed, drunk, smashed, three sheets to the wind, etc. and we would all understand them to mean drunk, as in really drunk. By the same token, most people use the word intoxicated solely in reference to "legally intoxicated" and are referring to DWI when they do use the term. So, the common usage is now a very technical usage as indicated by Chapter 49.

In addition, there are court rulings that say that if the term is not defined in the specific section, look in the chapter, then the subtitle, then the title, then the code, then other codes for a definition. The courts would accept a definition of intoxicated from the Alcoholic Beverage Code if there was none in the Penal Code. The problem is that there are actually a couple of different definitions of intoxicated in the Penal Code. There is even one in Chapter 46. In Section 46.06 the law says that intoxicated means a substantial impairment of the person's faculties. This is even higher than the definition in Chapter 49. So, normally, the court would use the substantial impairment definition.

It is my belief that the courts would look at the way intoxicated is used by the public to refer to DWI standards and would then apply that standard to carrying while intoxicated. A good defense attorney would argue for the higher standard of substantial impairment if he thought the prosecution would not be able to prove it. But, he might agree to use the Chapter 49 definition and then argue for no BAC reading, depending on the specifics of the case.

This will be important to us as the case law does get settled further. And there may be other case law out there already that I am not aware of. I will caution everyone to remember that this case will not necessarily make precedent for us. A District Court ruling is not binding as case law though it can be used to argue for a specific meaning. It takes an appellate court to make precedent, and then it is only binding in that circuit. To get a statewide definition that is somewhat binding takes either the Court of Criminal Appeals or the state Supreme Court. This is ignoring the district court making an appellate review of a county court decision, of course.

[TexasGal]

Thank you for clarifying the route a case must take to be considered as case law. That does clear things up a bit. In our instructor's class it was impressed on us that you are intoxicated if an officer says you are. Normally anyone with common sense would base this on impairment that is fairly easily discerned through the usual symptoms, failing a FST, blood alcohol, etc and not just a smell of alcohol. As I understand this case, the concern is an arrest took place for something that was not illegal (carrying in a hospital that was not posted) and when the guy declined to accept a plea of guilty, then the alcohol charge was suddenly tacked on. Was he or wasn't he intoxicated at the time of the arrest? If there is only the officer's observation of the smell of alcohol on his breath and no supporting evidence of impairment was even sought (breath test, blood test, or even a field sobriety test on camera) then it should be wrong to be able to add the charge later. Am I reading this entire story incorrectly? My point isn't whether or not a conviction can be reached on such shaky ground (unless there is much we have not been informed of), but the law should protect a citizen from having to go through the expense and trouble to defend himself when there was no supportive evidence even sought by the arresting officer at the time. The same officer allowed the guy to drive a car, correct? Unless there is a lot of misinformation or misunderstanding going on, this does not seem right.

[Heartland Patriot]

I personally practice the airplane pilot's rule "twelve hours between the bottle and the throttle" when it comes to drinking and then carrying a gun.

That's 4 hours more than FAR 91.17 requires (8 hours bottle to throttle), but hey, your rule is safer

Yeah, I saw alphonso's post and scratched my head on that one. As an aircraft mechanic who previously spent a lot of time around USAF aircrews, I always heard it as "8 hours, bottle to throttle". Glad the FARs agree with what I remember...not the FARs are the standard for our Texas CHL, though.

[jmra]

I wonder how different this picture will appear if/when we hear both sides of the story.
I will reserve judgement until I see the police report from the initial arrest and any testimony from witnesses the prosecution presents.

[E.Marquez]

I wonder how different this picture will appear if/when we hear both sides of the story.
I will reserve judgement until I see the police report from the initial arrest and any testimony from witnesses the prosecution presents.

You likely will not make a judgment then till after this is settled.

If you were the one standing trial.. would you acquiesce to some random guy on the internet and post the entire case, or even components of the case on line for trial by internet forum member?

Would a Trial lawyer want the court of public internet forum opinion to taint his clients case before trial?

[E.Marquez]

As I understand this case, the concern is an arrest took place for something that was not illegal (carrying in a hospital that was not posted) and when the guy declined to accept a plea of guilty, then the alcohol charge was suddenly tacked on.

Yes that is how it is being related to me.

Was he or wasn't he intoxicated at the time of the arrest? If there is only the officer's observation of the smell of alcohol on his breath and no supporting evidence of impairment was even sought (breath test, blood test, or even a field sobriety test on camera) then it should be wrong to be able to add the charge later.

It should be wrong, yet that is what is happening.. With what I understand, the only supporting evidence behind the charge of intoxication being the officers observation that he smelled alcohol, and Mr Simmons self-admitting he had a glass of wine with dinner (this was related at the event site when EMS responded to his home)

Am I reading this entire story incorrectly?

I believe you are reading what has been related to us correctly.
I of course do not know if we know the entire story.. Nor will we hear the DA's side until trial

The same officer allowed the guy to drive a car, correct?

Let him drive may be an overstatement..
But had knowledge that Mr Simmons did drive, yet took no action at the time to stop him, from driving, nor at the hospital after driving is closer to what I understand to be the event.

Unless there is a lot of misinformation or misunderstanding going on, this does not seem right.

I stand by what I have posted as what has been related to me ... the information correctness of that info and the totality of what it means is what a jury will decide.

And I agree with you, from what we know, it does not seem right

[jmra]

I wonder how different this picture will appear if/when we hear both sides of the story.
I will reserve judgement until I see the police report from the initial arrest and any testimony from witnesses the prosecution presents.

You likely will not make a judgment then till after this is settled.

If you were the one standing trial.. would you acquiesce to some random guy on the internet and post the entire case, or even components of the case on line for trial by internet forum member?

Would a Trial lawyer want the court of public internet forum opinion to taint his clients case before trial?

Absolutely not. Nor should I take something posted on the Internet at face value. As stated before, I will gladly contribute to the defense when I have something of substance that confirms his story - that alcohol was not a contributing factor in original arrest.
I appreciate the information you have provided and the effort on your part to obtain it. But, as you have stated, it is all third hand information you have received from a biased party.
If everything that had been told to you is accurate, there is no way that releasing the original police report could hurt this guys case. But it could go a long ways toward raising money for his defense.
Waiting for what Paul Harvey used to call "the rest of the story".

[RPB]

Just glancing at Jeff Parker's docket is interesting

I'll copy/paste a little as it is public record
http://www.jeffparkerlaw.com/docketfile ... ockets.pdf" onclick="window.open(this.href);return false;
J E F F   P A R K E R ' S B E L L   C O U N T Y   D I S T R I C T   A N D   C O U N T Y   D O C K E T  FOR THE WEEK OF
 10/15/2012 ‐ 10/19/2012

Obviously the case must have been continued to a future date, however, look at the other cases for this week in the same County/same Courts/Same Judge:

Attorney Date TimeSetting Flat File Cause Crt Defendant Offense LProsecutor Arrested Off. Date Indicted BC AmtMisc
GLASS,K 10/15 9:00jury trial 12‐03219 2C1203414 SAMPSON, NATHANIEL  OWEN UNL CARRY HANDGUN LIC HOLDER Ken Kalafut 3/30/12 72 5000

what's interesting is same week, different person:

attorney listed-plea

CARL,CR 10/19 10:00 plea 11‐08907 2C1109686 PENNING, PERRY LEE UNL CARRY HANDGUN LIC HOLDER Richard Lazott 11/1/11 PR 2500

same week, different person:
no attorney listed- DC

10/15 8:30 docket call 12‐06998 2C1207447 BENTON, JERRY RAY UNL CARRY HANDGUN LIC HOLDER Mark McCarthy 7/21/12 60 500

same week, different person:

Attorney Date TimeSetting Flat File Cause Crt Defendant Offense LProsecutor Arrested Off. Date Indicted BC AmtMisc.
BALAGIA 10/17 13:30 docket call 11‐05807 2C1106288 VARGAS, STEVEN UNL CARRY HANDGUN LIC HOLDER Susan Sarrazin 6/26/11 26 2500
BALAGIA 10/17 13:30 docket call 11‐05894 2C1106452 VARGAS, STEVEN DEADLY CONDUCT Susan Sarrazin 6/26/11 26 2500

Without knowing any details at all ...looks kinda like Bell County Police/Prosecutor declared war on CHL holders carrying legally or not? Or, a bunch of licensees all of a sudden got careless? Or every bulge is searchable in Bell County?

[jimlongley]

Thank you for clarifying the route a case must take to be considered as case law. That does clear things up a bit. In our instructor's class it was impressed on us that you are intoxicated if an officer says you are. Normally anyone with common sense would base this on impairment that is fairly easily discerned through the usual symptoms, failing a FST, blood alcohol, etc and not just a smell of alcohol. As I understand this case, the concern is an arrest took place for something that was not illegal (carrying in a hospital that was not posted) and when the guy declined to accept a plea of guilty, then the alcohol charge was suddenly tacked on. Was he or wasn't he intoxicated at the time of the arrest? If there is only the officer's observation of the smell of alcohol on his breath and no supporting evidence of impairment was even sought (breath test, blood test, or even a field sobriety test on camera) then it should be wrong to be able to add the charge later. Am I reading this entire story incorrectly? My point isn't whether or not a conviction can be reached on such shaky ground (unless there is much we have not been informed of), but the law should protect a citizen from having to go through the expense and trouble to defend himself when there was no supportive evidence even sought by the arresting officer at the time. The same officer allowed the guy to drive a car, correct? Unless there is a lot of misinformation or misunderstanding going on, this does not seem right.

A very long time ago, back in the 60s, I was "arrested" by the City of Newport police department. There is a longer version of the story, but the officers had me follow them, driving my own car, to the police station, and then I was told that I was too intoxicated to leave in my own car, so I should bring any personal items in and check them in with the desk sergeant because it was too risky to leave them out front where cars got broken into a lot. The next day when I returned to retrieve my personal items (guitar, camera, rifle, shotgun, other stuff) all of my stuff was returned except the guns. i was told that I needed to see the detectives in order to get them back.

When I walked in to the detectives' office, one commented to another that I didn't look like I should own guns, this despite the 3rd Class Gunner's Mate crow on my sleeve (I could hit their office from my ship with one of the guns I had readily at my disposal.) After being told that my guns were forfeit because they were turned in "not broken down" as required by state law, I went immediately to the JAG Corps office on the pier right adjacent to where my ship was moored. It just happened that I had been selected to give a JAG officer a tour of the ship a while before and he had told me if I needed any help to come see him, so I did.

We drew up a list of 13 charges against the City of Newport, the PD, and the individual officers and detectives involved, which included the unsubstantiated accusation of intoxication after being ordered to drive my car to the police station, and illegal seizure of my guns, which were within the law, and unusable BECAUSE I STILL HAD PARTS OF EACH IN MY CAR.

I had never received a ticket, summons, or anything else to indicate what I was detained for, what I was going to be charged with, why my items were confiscated, or anything else, and after a short conference involving me, the JAG officer, the Chief of the City of Newport Police, and one of the detectives, my guns were finally returned to me, although it did take a while for my .22 to be "found" in the property room (after the detective left the building and came back with a long package) and no charges were ever filed, on either side. I never even received a follow up on the parking ticket that I got for leaving my car exactly where the officers told me to park it.

The whole story is much longer and convoluted, but that covers the necessary for this subject.

The City of Newport police had a reputation for dealing underhandedly with sailors, I am one of the few who ever won.

[SewTexas]

so what does "UNL CARRY HANDGUN LIC HOLDER " mean?

sorta feel like heading up to Bell county and walking around but then again I don't really have time in my life to be arrested