Chuck_wall wrote:Brings me back to my original question though. I'm more trying to figure out the actual legality of it all. While I have no intention of ever being in a situation that know this law would help, its more for my own curiosity's sake because I've heard so many different stories of what people think the law is.
The main point of disagreement is when you have a CHL, is there zero tolerance on drinking, even when not carrying?
Keith B is giving you the correct information. Something you have to remember (and IANAL either), is that the statutes themselves are written as restrictive, not prescriptive. In other words, what you get in the laws themselves are mainly definitions and "may not" statements; you'll almost never find a list of "these are the things you
can do" statements. Logically, that kind of list would be way too extensive...so long as we live in a democratic republic.
The pertinent section of the Texas Penal Code is PC §49; the definition of "intoxicated" is in PC §49.01(2):
"Intoxicated" means: (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.
And if you check the Texas Government Code GC §411.171, you'll see that item 6 points to the same definition of "intoxicated" as used for any other purposes, be they charges of public intoxication, DWI, or anything else. If you need further clarification of what is and isn't considered a "drug," see the Health and Safety Code, Title 6, Subtitle C.
I am far from a lawyer (Charles lives a good 60 miles from me
), but there is nothing in Texas law, nor has there ever been, that states you cannot have a glass of wine with dinner and still carry your weapon. Zero tolerance is the way a lot of us handle the matter, because there's no way to slip up and "have one too many" with that approach.
But the bottom line is that intoxicated means "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." I think the CHL zero-alcohol myth started because that definition allows a law enforcement officer to make a situational call: if he or she believes you do not have normal use of your mental or physical faculties, you may take a ride until proof can be had otherwise. If you got bonked on the head during a robbery, you may be walking wonky but have ingested nothing more nefarious than tomato soup; who knows?
So to sum up your questions:
1. What is the legality of driving, while under the .08 limit, with a CHL while not carrying?
The .08 BAC limit is just one way to
prove intoxication. If you have a .04 BAC and chewed on a couple of Vallium, you are still just as much in jeopardy.
PC §46.035(d) states: "A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed."
If you do
not have a gun on or about your person (including anywhere within reach, e.g., in the car glove compartment), you may be convicted of DWI or other charges, but the conviction won't have anything to do with your CHL or PC §46.035.
2. What is the legality of driving, while under the .08 limit (say a beer with dinner), with a CHL while carrying?
See comments about .08 BAC (and I repeat them so much not because of your question, but because it
does come up so often). If a LEO believes you to be intoxicated as defined under PC §49.01, you may very well take a ride for breaking the law under PC §46.035(d), whether you have a .08 or greater BAC or not. One leisurely beer with dinner will not cause you to fail a field sobriety test. No alcohol at all, but a few Quaaludes, and you probably won't pass a sobriety test.
Welcome to the Forum! Hope you find it interesting.
(Remember, I don't even play a lawyer on TV, so my thoughts in no way constitute advice. But the statutes are there for everybody to read. You aren't likely to get a professional, interpretive opinion from a practicing attorney or judge on a public Forum...for good reason. If one of them is aware of specific case law, though, they might cite that so we can go look it up.)
. If you can't pass a field sobriety test 
you are impared regardless of your BAC. If you are deemed impared the nice officer will invite you to a sleep over at the local jail. So, if you drink don't drive and dont carry a firearm you'll stay out of trouble that way. 
