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HankB

DSARGE wrote:What if I am sitting in the backyard having a couple of beers and shooting the blue jays off the bird feeder with a pellet pistol (1911 model). One of the BB's ricochets off a knot in the live oak and wounds a hummingbird. Injuring a non-game bird - they're small, so did anyone see it? No witness, no problem. The Hummingbird falls and is eaten by a cat. Evidence gone - no problem. The cat subsequently dies of lead poisining (from the Pellet). Dead cat - you got a twofer! Congrats! Can the Game Warden nail me if he finds an empty beer bottle in the ditch behind the house? Is catus domesticus expiry even within the Game Warden's purview? Even if the dead cat corpse is recovered, what likelihood is it that CSI will be called in to do a tox screen for lead? Will the EPA enhance the charges because I'm shooting "non-environmental friendly pellets"? Given the difficulty of a ballistic match to YOUR pellet gun - especially after chewing and partial digestion, or recovery from cat scat, I'd have to say "no." ...... Something to think about. But not for long.

HankB

srothstein wrote: . . . And here is a trick you might not be aware of that could really hurt you. If the officer books you for 46.035 carrying while intoxicated, be careful that he does not also book you for PI. Most PI cases are not truly heard or handled, but you are held until sober, then found guilty and sentenced to time served or such. If I were handling this type of incident, I would guarantee I would do this, because I could then use the PI conviction as proof that another court had FOUND that you were intoxicated at that point in time. Makes this case easy since there is a rule saying I only need to adjudicate any point one time.

The whole question is really revolving NOT around someone who's drunk or doped up while carrying, but who may have had a drink or two . . . and a possible LEO who decides on his own that that constitutes "intoxication."

If the LEO lacks hard evidence, but wants to proceed anyway, how does one "be careful" that what sounds like a crooked/dirty cop doesn't trump up charges of public intoxication, in order to facilitate a later conviction for carrying while intoxicated?

HankB

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

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.

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