Carrying while intoxicated questions

[ron1n1]

So I haven't posted in a while because all the folks smarter than me ask the question first , but I'm curious about an issue that came up during my recent renewal class. While reviewing the applicable statues, the instructor stressed that 'just having alcohol on your breath' would violate the carrying while intoxicated statute and it would end up in a conviction.

My understanding is this: A) it is legal to consume alcohol while carrying; B) it is illegal to be intoxicated while carrying; and C) there is no definition of 'intoxicated while carrying' so it becomes a judgment call of the police officer involved. Has the statutes changed or is there case law to support the instructor's statement?

I never plan on drinking while carrying, but sometimes I'm out with family or friends who don't know I carry (but do know I have a CHL) and we'll make an unplanned stop for lunch or dinner. Since it would look out of place or raise questions if I didn't have a beer or glass of wine with our meal, I'll order exactly one and nurse it the entire time.

Any other suggestions on how to avoid an awkward social moment and reveal that I'm carrying if having one drink is too much of a risk?

Thanks!

[Crossfire]

Ron - you have it figured out. Your instructor is mistaken.

You cannot carry if you are intoxicated.

Blood alcohol level will not be used to determine intoxication level for a CHL holder.

It is up to the officer to determine if you are "intoxicated or impaired in any way"

[kahrfreak]

Ron - you have it figured out. Your instructor is mistaken.

You cannot carry if you are intoxicated.

Blood alcohol level will not be used to determine intoxication level for a CHL holder.

It is up to the officer to determine if you are "intoxicated or impaired in any way"

Huh...I was told the exact same thing by *my* instructor (twice), that any detectable alcohol will start the wheels turning to revoke your CHL.

Perhaps it's the way instructors are being trained? I don't believe this is simply coincidence, as I've seen other similar posts.

[couzin]

While reviewing the applicable statues, the instructor stressed that 'just having alcohol on your breath' would violate the carrying while intoxicated statute and it would end up in a conviction.

Instructor was correct (sorta) - because as stated 'it is the LEO determination if the CHL holder (carrying a handgun) is impaired'! Could get you a ride downtown, whether or not there would be a conviction - ehh! Don't know. Maybe - depending on how demonstrably drunk one might be. Personally - I just don't drink when out anywhere anymore. Don't want to be caught driving or carrying where I might score on a field sobriety test or if some other situation arose.

[ScottDLS]

I don't agree that it is "up to the officer" make a the final determination as to whether you are intoxicated. In GC 411.171 the definition of "intoxicated" is assigned to have the same meaning as it does for driving (PC 49.01). If you're being arrested for "carrying while intoxicated", you may not be offered a breath test or a field sobriety test, but then it would be harder to prove that you were intoxicated. Just saying that you had alcohol on your breath would likely not be enough to prove (to a jury) that you were intoxicated.

[KC5AV]

I don't agree that it is "up to the officer" make a the final determination as to whether you are intoxicated. In GC 411.171 the definition of "intoxicated" is assigned to have the same meaning as it does for driving (PC 49.01).

Sec. 49.01. DEFINITIONS. In this chapter:

(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.

The simple introduction of alcohol into your system begins the impair your mental or physical faculties. It may not end up with your being arrested, etc., but the possibility exists.
In the instructor school this summer, they hammered that (A) pretty well. I make sure students are aware of the fact that they don't have to blow .08 to get arrested for 'carrying while intoxicated'. From there, let your conscience be your guide.

[USA1]

I never plan on drinking while carrying, but sometimes I'm out with family or friends who don't know I carry (but do know I have a CHL) and we'll make an unplanned stop for lunch or dinner.

When I find myself in that situation (which is rare), I will disarm and lock my gun in the trunk for the ride home.
I don't want to take any chances of losing my CHL over having one drink in a social setting.

[ScottDLS]

I don't agree that it is "up to the officer" make a the final determination as to whether you are intoxicated. In GC 411.171 the definition of "intoxicated" is assigned to have the same meaning as it does for driving (PC 49.01).

Sec. 49.01. DEFINITIONS. In this chapter:

(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.

The simple introduction of alcohol into your system begins the impair your mental or physical faculties. It may not end up with your being arrested, etc., but the possibility exists.
In the instructor school this summer, they hammered that (A) pretty well. I make sure students are aware of the fact that they don't have to blow .08 to get arrested for 'carrying while intoxicated'. From there, let your conscience be your guide.

However the same goes for driving, and people who blow <0.08 are often acquitted or charges dropped. You don't have to blow .08 to get arrested for DWI either, or even convicted. I think the instructor school makes a good point and people should be aware of this before they drive, or carry, or even drink in public... as it IS a crime to drive, carry, or be in public - while intoxicated.

[Crossfire]

Ron - you have it figured out. Your instructor is mistaken.

You cannot carry if you are intoxicated.

Blood alcohol level will not be used to determine intoxication level for a CHL holder.

It is up to the officer to determine if you are "intoxicated or impaired in any way"

Perhaps I should have clarified that I meant "up to the officer's discretion" under the definition of PC 49.01

Thanks!

[Keith B]

Ron - you have it figured out. Your instructor is mistaken.

You cannot carry if you are intoxicated.

Blood alcohol level will not be used to determine intoxication level for a CHL holder.

It is up to the officer to determine if you are "intoxicated or impaired in any way"

Perhaps I should have clarified that I meant "up to the officer's discretion" under the definition of PC 49.01

Thanks!

This is EXACTLY what my instructor told me.

(Maybe that is becasuse Crossfire WAS my instructor. )

Seriously, it is no different than driving. It is strictly up to the officer's discretion if they feel you are intoxicated unless you meet the >.08 BAC. You can be intoxicated with one drink of alcohol if there are other things in your system that contribute to the total impairment of your body. As well, you can be intoxicated without any alcohol, but medications/drugs in your system. Without any external proof of intoxication (BAC or breathalyser), it will be harder to prove your intoxication/impairment in court and there will probably need to be witness accounts or video showing you were impaired to substantiate the officer's interpretation for a conviction.

[baldeagle]

I was foreman of a jury that found a woman guilty of DUI. She refused a breathalyzer test. She was convicted because her behavior demonstrated that she had lost the normal use of her faculties. The judgment of the officer resulted in an arrest, but the jury's judgment, based on testimony, is what got the woman convicted. If you want to hang the continued possession of your CHL on the judgment of police officers and juries, then by all means have a drink while carrying. If you want to avoid that possibility, then don't drink while carrying.

[Fangs]

I do occasionally have a drink while carrying. I keep it to one drink since I believe it would be very, very hard for an officer to decide I'm intoxicated after just one drink. At almost 200 pounds, I'll gladly take a breathalyser test if it's requested.

The situation usually arises if I'm out somewhere at a restaurant with friends and someone offers to buy me a drink. Just doesn't seem like such a huge risk, but to each their own.

[74novaman]

I do occasionally have a drink while carrying. I keep it to one drink since I believe it would be very, very hard for an officer to decide I'm intoxicated after just one drink. At almost 200 pounds, I'll gladly take a breathalyser test if it's requested.

The situation usually arises if I'm out somewhere at a restaurant with friends and someone offers to buy me a drink. Just doesn't seem like such a huge risk, but to each their own.

I'm the same way. Over 200 lbs, and never more than wine or a beer with dinner. I never do anything to draw attention, so I really don't see it as an issue. An officer is going to have a hard time making his case for intoxicated if I am polite, respectful, fully cognitive and absolutely able to operate.

I kind of see this as a molehill-mountain issue.

If you're getting hammered at the restaurant bar, then driving home weaving lanes with a pistol, then your experience might be a little different then my reaction to a glass of wine with a nice steak.

[Scott in Houston]

I'm not a lawyer, but I know that even after just one drink, I won't blow into a breathalyzer. I'd take field tests, etc. after just one drink, but I wouldn't ever blow. It cannot help you. Your best case is to blow zero, which is unlikely after even just one drink, and that's it. Anything above zero can be used against you and will. It's much easier for your attorney to argue the field tests and videos, etc. than a breathalyzer.

IANAL but my uncle is a DWI attorney in AZ and tells me this all the time even if I think I"m 100% sober, to never blow if asked and I figure the reasoning also translates to carrying.

[Dave2]

I was foreman of a jury that found a woman guilty of DUI. She refused a breathalyzer test.

I wasn't foreman, but that's what my jury got to decide on when I was called. Except in the case I was on, the guy blew a 0.17... forty-five minutes after he got to the station... never did figure out how he & his attorney thought they'd win.

Anyway, I've pretty much don't drink if I'm not already where I can go to bed (or KNOW that there's a DD to get me there). I can't hold my liquor at all and I've got enough trouble passing a field sobriety test as it is. Plus, if I get pulled over, I can truthfully tell the cop that I haven't had alcohol (they tend to ask that when you call them "ociffer"). My friends know this about me, so none of them would think it strange if I don't have a drink with my meal.