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How would a LEO proceed if he pulled someone over and the driver was driving a passenger who had been drinking. The passenger isn't drunk but he can't drive. He has a LTC. He wasn't carrying while drinking but the driver kept a gun in the car. It isn't the drivers car its the passengers car with the LTC but he isn't carrying. You're allowed to carry in your vehicle. So how would the law or a LEO interpret this?

Soap wrote:How would a LEO proceed if he pulled someone over and the driver was driving a passenger who had been drinking. The passenger isn't drunk but he can't drive. He has a LTC. He wasn't carrying while drinking but the driver kept a gun in the car. It isn't the drivers car its the passengers car with the LTC but he isn't carrying. You're allowed to carry in your vehicle. So how would the law or a LEO interpret this?

First...The definition for "intoxicated" is exactly the same for Carry under LTC as it is for driving. THE SAME. Exactly the same legal definition in PC Chapter 49. If you shouldn't be carrying, you shouldn't be driving and vice versa.

Now to your question. If a sober driver is driving an intoxicated passenger in his car, the sober driver may "carry" a handgun on or about his person per MPA or with a LTC. An intoxicated passenger may not carry a gun under authority of his LTC. The conceivable question is...what if the gun is in the glovebox? Well for purposes of 46.02 that is considered "on or about the person" of the driver. So this is legal per MPA and LTC. Is it considered on or about the person of the passenger? I believe generally the answer is NO. The driver is "in control" of the vehicle, and responsible for the contents, so generally the gun in the glovebox "belongs to" the driver. To avoid potential hassle for the intoxicated passenger, I would recommend the driver carry the gun on his person in a holster or pocket. But probably glovebox or console would be OK too.

Thanks for driving him home, here is a warning for your tailight, have a nice night.

nightmare69 wrote:Thanks for driving him home, here is a warning for your tailight, have a nice night.

nightmare69 wrote:Thanks for driving him home, here is a warning for your tailight, have a nice night.

That's pretty much the way it should go. Even if there is a gun in the vehicle, to do anything else would potentially destroy the designated driver recommendation. As long as the,sober driver is cooperative, explains that he/she is the designated driver, the vehicle belongs to the intoxicated person, and there are no other extenuating issues, the entire stop should go smoothly.

Russell wrote:

First...The definition for "intoxicated" is exactly the same for Carry under LTC as it is for driving. THE SAME. Exactly the same legal definition in PC Chapter 49. If you shouldn't be carrying, you shouldn't be driving and vice versa.

Is this what we have settled on? Last I read about this, there was no consensus on if the definition of "intoxicated" followed the definition used for operating a motor vehicle, or if it could be argued that ANY amount of alcohol, even if you would pass normal sobriety tests, could be used to charge someone that is carrying.

From CHL-16
GC §411.171. DEFINITIONS.
(6) “Intoxicated” has the meaning assigned by Section 49.01, Penal Code.

PC §49.01. DEFINITIONS.
(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.

PC §46.03. PLACES WEAPONS PROHIBITED.
(d) 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 or carried in a shoulder or belt holster.


I would think that .08 is an automatic. Anything up to .08 is going to be a risk and will probably depend on how badly the DA wants you.

At my instructor classes the DPS has stressed each time that alcohol and carrying do not mix and recommended zero blood alcohol level.

http://www.cdc.gov/alcohol/fact-sheets/alcohol-use.htm
"However, there are some people who should not drink any alcohol, including those who are:
- Driving, planning to drive, or participating in other activities requiring skill, coordination, and alertness.

I think carrying or using a firearm would fall under "other activities requiring skill, coordination, and alertness." and that means, to me, no alcohol at all.

I have heard the argument several times that "If I just have one beer/glass of wine over dinner at a restaurant I'm not intoxicated." Maybe or maybe not but I don't think that it is unreasonable for the DA or victim's lawyer to start questioning when the witnesses say you had been drinking during your meal. You may be able to prove you weren't "intoxicated" but I imagine it will cost you a lot more time and money trying to prove your innocence.

Just my way of thinking about it.

I could swear this topic has been brought up before.

If the driver is not drunk, and assuming he is NOT LTC, the subject of a gun in the car should never come up...

RogueUSMC wrote:If the driver is not drunk, and assuming he is NOT LTC, the subject of a gun in the car should never come up...

THIS

I have my girlfriend drive me home occasionally if we go to a friends house and I actually decide to drink. I just stick my carry in the glove box and don't worry about it. Even when I'm doing that I'm usually not "drunk" but if I am drinking anything and she isn't why take the chance.