TexasCHLforum.com

codecowboy wrote:Its a decision I made when I applied for my CHL. If I have even the hint of alcohol on my breath, I absolutely will not carry. Not even if I only have a beer.

They way I view it...if you get pulled over, its entirely up to the discrection of the officer. And his discretion might suck. So if I'm drinking, the gun gets locked in my Center-Of-Mass.

linh811 wrote:for some people 1 drink is the equivalent of 1 line of coke in terms of physical/emotional/psychological impairement....

if it's ok to have 1 drink I guess it should also be OK to have 1 line of coke too..

frankie_the_yankee wrote:

txinvestigator wrote:

frankie_the_yankee wrote:

ForbidInjustice wrote: I was taught that there is no 'legal limit' while carrying.

You were taught wrong, no doubt by the same type of preachy instructor that I had when I took my renewal class last month.

No, his instructor was accurate. There is no "legal limit" while carrying. The term legal limit refers to .08% BAC, and only is applicable to DWI. Even then, it is a misnomer. Even for DWI, there is no 'legal limit".

When ForbidInjustice's comments are taken in context, we see that what he really meant (and what he understood his instructor to mean) by "legal limit" would be expressed in other words as "anything above 0% is illegal".

Hence my reply.

frankie_the_yankee wrote:

ForbidInjustice wrote: I was taught that there is no 'legal limit' while carrying.

You were taught wrong, no doubt by the same type of preachy instructor that I had when I took my renewal class last month.

frankie_the_yankee wrote:

135boomer wrote:No. The problem is that I don't know what he/she thinks. There are too many judgment calls an officer can make. A person does not have to be at or above .08 to be impared.

That's the difference between you and me then. If I believe I am doing nothing wrong, I don't care what he/she thinks.

frankie_the_yankee wrote:

Jason73 wrote:I dont touch alcohol when Im carrying. My CHL instructor had a great point - If you have to use your gun and you have alcohol in your system, ANY alcohol, the prosecution is going to have a field day with you and you WILL go to prison.

And I think that that's a load of balony.

KBCraig wrote:

txinvestigator wrote:Admittedly I don't know much about LEOSA. Is that a Federal Prohibition?

The Law Enforcement Officers Safety Act of 2004, often referred to as "HR-218", but now it's Public Law 108-277, 18 USC 926.

It's the "nationwide carry for LEOs" law, which says that a qualified LEO, or qualified retired LEO, can carry a concealed handgun notwithstanding the laws of states or political subdivisions.

]^^^^^^^^^^^That I knew. Below I did not. Thanks.


The definition of "qualified" in that law includes "is not intoxicated".

There are about 3,000 Federal Bureau of Prisons personnel in Texas who are "qualified law enforcement officers" under LEOSA, but who are not Texas Peace Officers, nor "Special Agents" as qualified in Texas law. The exemptions in Texas law for Peace Officers do not apply.

So, if a BOP employee is carrying a concealed handgun while intoxicated, he loses his LEOSA protection (he no longer meets the definition of "qualified"), and would be just Joe Schmoe with a gun and no license, making it Unlawfully Carrying a Weapon.

Kevin

KBCraig wrote:

txinvestigator wrote:And to return the favor, An Active duty military CAN obtain a CHL prior to 21, no?

LOL, I thought of that this morning before I logged on, and meant to post an addendum.

txinvestigator wrote:There is no legal prohibition against a cop carrying while intoxicated.

So long as "cop" = "Texas peace officer", right? Out of staters or non-TCLEOSE LEOs (such as feds who aren't "Special Agents" by Texas law), who are carrying under authority of LEOSA, can't be "intoxicated" (not defined in federal law, either). If they were found to be carrying while intoxicated, they would lose LEOSA protection, and could be charged with UCW.

We're getting off into the small details here, which won't apply to most people, but it's interesting to note how the law doesn't always apply as intended.

Kevin

KBCraig wrote:

txinvestigator wrote:There is one charge concerning alcohol (and drugs or illegal substances) and driving; DWI. DWI, is DWI.

*ahem*

There's that one, and there's the other one, which is DUI (for drivers under age 21).

Obviously, DUI doesn't apply to CHLs (all of whom are 21+).

Kevin

frankie_the_yankee wrote:

txinvestigator wrote:

If a LEO attempted to pop me for carrying while intoxicated after having ONE beer or glass of wine, I would volunteer to take a breath or blood test. And if for some reason the LEO refused to cooperate, I would contact my lawyer at the first opportunity and have HIM arrange for me to be tested, WITH witnesses present who agree to swear out affadavits or do whatever might be necessary to legally establish that I was tested and blew whatever number I blew.

That ain't gonna happen. He would have to find a certified intoxilizer operator to administer the test, And there is no requirement for the LEO or jail to allow it.

It does not matter, as what you would have blown is only ONE possible way to conviction.

Fine. And I'm still gonna have my glass of wine (or beer) whenever I feel like it, with not a care in the world of ever being convicted of carrying while intoxicated.

I am with you 100%

But I have a few questions for you, TXI. You have provided some good information, as has srothstein. But neither of you has directly stated one way or the other whether a person with a normal response to alcohol is breaking the law if they are carrying after having one glass of wine or one beer. So say you get rear ended like I did, and you're carrying, and you declare it as you are obligated to. You are acting perfectly normal. No bloodshot eyes. No slurred speech. Your clothing isn't "messed" or messed up. You walk and talk normally. You do not exhibit wild mood swings. You are calm, lucid and collected, and you are not breaching the peace.

Fair question. If the officer has reason to believe you are intoxicated in your scenario, DWI will surely also be raised. With what you stated, It appears you are saying the officer has no reason to suspect intoxication. In that case, I don't see it as an issue.

Have you ever heard of anyone like that getting charged and convicted of carrying while intoxicated?

I have never heard of ANYONE being arrested under that law. A statistical record, unfortunately, would not reveal the circumstances.

Have you ever known a cop to have a drink (one drink) while carrying? Have you ever known of a cop who was charged and convicted of carrying while intoxicatd after having one drink?

frankie_the_yankee wrote:

txinvestigator wrote: And remember, to obtain a conviction for CHL carrying while intoxicated, being a danger to yourself or others is not an element of the offense. The burden of proof is less than for Public Intoxication.

BTW, under Texas law, there is no obligation to submit to Field Sobriety Tests either.

I think you mean something more like "the standard for proof" than the "burden of proof" as you stated. Except for when the law requires one to mount an affirmative defense, the burden of proof is always on the state. And guilt must be proven "beyond a reasonable doubt".

If a LEO attempted to pop me for carrying while intoxicated after having ONE beer or glass of wine, I would volunteer to take a breath or blood test. And if for some reason the LEO refused to cooperate, I would contact my lawyer at the first opportunity and have HIM arrange for me to be tested, WITH witnesses present who agree to swear out affadavits or do whatever might be necessary to legally establish that I was tested and blew whatever number I blew.

HankB wrote:

txinvestigator wrote: . . . However, Intoxication is NOT difficult to prove. I have had DWI convictions where the person blew BELOW the presumed level, and where no blood alcohol sample was obtained, and I obtained plenty of Public Intoxication convictions. . . .

TXI, IANAL, but my understanding is that DWI convictions can go two ways - "Driving While Intoxicated" which involves some sign of impairment, and/or "Driving with 0.08% or over BAC." So a person with a low tolerance may show impairment (staggering, slurred speech, etc.) and thus be convicted of DWI even if they have "only" 0.07% BAC. (Or if under 21, any BAC above 0.00%.) Is it something like that?

If a CHL holder is not driving and not visibly impaired and does not submit to a BAC, breathalyzer, or field sobriety test, "carrying while intoxicated" may be quite difficult to prove - I suppose you'd look for witnesses to his drinking, or check bar tab or credit card records, but in the absence of other evidence, successful prosecution would be an uphill battle.

HankB wrote:Drunks ought not carry a gun, any more than drunks ought to drive.

But I don't consider a drink or two at dinner to mean "intoxication."

Lawyers, please step in and cite the law if I'm wrong, but unless you are confronted by an LEO while driving a car, you are under no obligation to submit to a BAC or field sobriety test. Not if "made" while carrying, and not after a defensive gun use.

AFAIK, Texas' "implied consent" law only covers driving, not packing.

With no BAC or field sobriety test, it will be most difficult to prove intoxication.

DSARGE wrote:How many of you have a beer or two while carrying? Spent Sat morning with a guy from work checking out a few gun shops and sporting goods stores. Of course, both of us were carrying. I know him from work, but this was the first time I ever hung out with him in a social setting. We wound up at a hamburger joint, and he ordered a beer. He had two over the course of lunch. It is none of my business what anyone does, and this is not illegal--just a personal decision. This got me to thinking. What if one had to use his weapon--what kind of defense would he have concerning decision making if you have alchohol in your system--regardless of the amount? What if you got "made" sitting at a table full of empty beer bottles? What do ya'll think?