TexasCHLforum.com

Fangs wrote:I'm glad to see that I'm not the only one who was misinformed on the whole drink and carry subject.

It's a common misunderstanding. There are a lot of instructors teaching this incorrectly, and a lot of students misunderstanding instruction that is perhaps too subtly nuanced.

"Guns and alcohol shouldn't mix," gets translated into, "It's illegal to have a single drop in your system."

And, sometimes instructors just flat out get it wrong.

Morgan wrote:Thanks for the clarification, Steve. See, my confusion comes in because I was given incorrect (and far more conservative) advice in my CHL class. The instructor said that the .08 number in Texas Penal Code was relevant only to DUI.

That used to be the consensus among even our legal beagals, too. We've talked about the subject for so long, that I forget whose analysis changed everyone's mind, or what the argument was.

I sometimes catch myself starting to say that 0.08 BAC only applies to driving, then something clicks in the back of my head and I remember to bite my tongue on that.

He stated that since the penal code and handgun laws did not establish what the limit was for carrying a handgun, that in essence a person could be charged with a handgun-alcohol offense at .01, with ANY ALCOHOL AT ALL in their system.

The second part is true enough. You can also be charged with DWI or any other intoxication offense at 0.01 or any other amount of alcohol in your system, if the officer can establish that you don't have normal control of your faculties. He doesn't have to prove that there is any alcohol in your system at all.

The difference is that a confirmed BAC of 0.08 or higher, you're automatically presumed to be intoxicated. It's the same as driving 1mph over the limited is presumed to be "unsafe speed". (And we all know that with both alcohol and speed, there is no absolute safe limit.)

AFCop wrote:While I agree some people are not, how should I say "mechanically inclined" to perform the walk and turn or the one leg stand but there is the Horizontal Gaze Nystagmus (a test of the eyes) that requires NO balance and proven to be accurate for determining a BAC of .10 or higher over 80% of the time...

I know NHTSA advocates it, but the HGN is somewhat controversial. It's accepted by some states, but not all.

http://www.california-drunkdriving.org/ ... _gaze.html" onclick="window.open(this.href);return false;

... using that with some phsychomotor skills tests (divided attention, finger dexterity, even the simple alphabet and counting can be used). Additionally, the officers observations would be used (i.e. did you hit a curb, stop in the middle of the road, etc.). I personally got a conviction based on the HGN (because they were over 60, 50+ lbs overweight and had bad knees), the tests mentioned above and my observations. No walk and turn, no one leg stand and no proof of actual BAC/BrAC, as they refused the implied consent. I will tell you, without the BAC/BrAC, you better be SPOT ON with your documentation and your knowledge of the SFSTs, etc. That defense attorney was a parana!

Yup, that's what I meant. It's hard to get an conviction for intoxication without having everything thoroughly documented, preferably on video.

My point is this: it is against the defendant's self-interest to cooperate in producing evidence against himself. There is no implied consent, nor any obligation to take a field sobriety test (including HGN), unless driving. So, don't!

srothstein wrote:So, intoxication means what the law says in chapter 49, quoted in an earlier post. This clearly allows you to have a drink or two while carrying. I think this might be a bad idea, but that is my opinion. That is probably where the confused part of my earlier statement came in as instructors gave advice and students took it as rules. It also shows that a person is intoxicated if they have lost the normal use of their faculties through any subject OR if they have a .08 BAC. The important part to note is that it is illegal if you have a .08 and you are still capable of doing anything you normally can.

I will add this when it comes to BAC: unless you're driving (a DWI would be prima facie evidence of intoxication), there is no obligation to ever submit to a BAC test. If requested to do so, don't!

We all know that people have a wide range of tolerance to alcohol. My wife and I stand eye to eye and weigh roughly the same (or so I suspect... she's not telling, and I'm not asking!) I drink beer pretty regularly, and I've always had a high tolerance. I could drink 12 over the course of a 4 hour football game, and no one would notice any difference. She, on the other hand, can have half a glass of wine and curl up to sleep before she finishes even that.

(Let me point out here that I never drink and drive, and drink very rarely outside my own home, and then only 1-2 drinks, max; perhaps 4-5 times in the last decade have I had even that.)

Intoxication can be established by the testimony of the officer, about specific things someone does to demonstrate that they do not have "normal use of mental or physical faculties", but it's much harder. Sure, it can be done, as our LEOs here have said, but they better be spot-on, and they better be able to show that the impairment is because of alcohol or other substance, and not age or disability. My wife hasn't had a sip of alcohol in at least a year, but I guarantee she could not pass a standard field sobriety test in a level parking lot, much less in the gravel at the side of the road. Her sense of balance just isn't up to it; stone sober she couldn't do as well as a 21 year old athlete with a good buzz.

"Implied consent" only applies to operators of motor vehicles. If you're not driving, do not consent!. They might very well prove you're intoxicated, but you should not help them make their case. The stakes are just too high.

And again, I do not support either driving or carrying while intoxicated, but I do recognize that "intoxicated" is best defined by one's specific actions, not an arbitrary BAC reading.

Mike1951 wrote:And were it changed, sooner or later, there would be a shooting in a bar by a licensee.

Even without the law being changed, there has been a shooting in a bar by a licensee. Probably more than one, but Billy Joe Shaver is the one who comes to mind.

So like all "gun free zones", the 51% sign does nothing to stop guns -- especially those that would be illegally carried whether it was a bar or not.