No Alcohol Limit?

[sjfcontrol]

PC 46.035(d) is the code section that states it's illegal to carry while intoxicated. But I see nothing there regarding there being "no legal limit" of intoxication.

Then there's Texas PC 40.01(2), which defines intoxication as...

Code: Select all

(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.

But the "B" section DOES mention a legal limit of 0.08.

So, where is it written that there is "no legal limit" when carrying under a CHL?

I'm specifically looking for the code section that validates the CHL test question, not trying to open up a (nother) general discussion of intoxicated carry.

[Beiruty]

Have you seen, the "Or" in the PC 40.01(2)(a), you can be convicted by (a) only.

[steveincowtown]

A= Officer's judgment call and his ability to articulate this to a judge

B= pass/fail test

Either could get a conviction.

IMHO, INAL, etc.

[sjfcontrol]

Have you seen, the "Or" in the PC 40.01(2)(a), you can be convicted by (a) only.

Yes, which is true for driving, too.

If you're driving, you can be charged if you show signs of intoxication (SFST) -- OR -- if you're over 0.08

If there is "No legal limit", then it would appear that you can only be charged while carrying if you show signs of intoxication. That your BAC would be irrelevant. And therefore it should be possible for someone to carry with a BAC OVER 0.08 as long as he could pass a SFST.

Otherwise, the whole "no legal limit" thing is meaningless.

[sjfcontrol]

A= Officer's judgment call and his ability to articulate this to a judge

B= pass/fail test

Either could get a conviction.

IMHO, INAL, etc.

"A" is not a judgement call. The Standardized Field Sobriety Tests are tests with pass/fail scores, too.

[Mel]

I think what people mean when the say "no legal limit" is that there is no "minimum legal limit". You can be deemed intoxicated without reaching any specific blood/alcohol content.

[thatguy]

I have always felt the DPS is trying to legislate the meaning of intoxication by saying a CHLer can not drink any alcohol while carrying a gun. Intoxication is defined by penal code and applies to CHLers and/or drivers alike. Of course the LEO involved with the stop would probably lean toward arrest if you are carrying vs. letting you go if you are not.

[sjfcontrol]

I'm thinking the last two posts have it figured out. They're referring to a MINIMUM limit, which of course there can't be (other than zero). The DPS legal department is known to insert its own desires into what they teach (or preach).
There appears to be nothing (that I can find, anyway) in the various codes that states there no "legal limit" for CHLs.

[tacticool]

So, where is it written that there is "no legal limit" when carrying under a CHL?

I'm specifically looking for the code section that validates the CHL test question, not trying to open up a (nother) general discussion of intoxicated carry.

It's the same as driving. If you're impaired, there's no limit.

[fickman]

Have you seen, the "Or" in the PC 40.01(2)(a), you can be convicted by (a) only.

Yes, which is true for driving, too.

If you're driving, you can be charged if you show signs of intoxication (SFST) -- OR -- if you're over 0.08

If there is "No legal limit", then it would appear that you can only be charged while carrying if you show signs of intoxication. That your BAC would be irrelevant. And therefore it should be possible for someone to carry with a BAC OVER 0.08 as long as he could pass a SFST.

Otherwise, the whole "no legal limit" thing is meaningless.

Interesting PHILOSOPHICAL* question:

Where the driver license is concerned, there is no penalty to refusing a field sobriety test. Refusing a breathalyzer results in an automatic 6-month suspension of the DL, whether or not you are charged or convicted. Refusing a blood test, I believe, holds the same ramifications as refusing the breathalyzer. (Many cities are doing immediate warrants to force blood tests, in which case you would have no right to refuse.)

Where the CHL holder is concerned, are there compulsions to comply or defined consequences for refusing a:
- Field sobriety test?
- Breathalyzer test?
- Blood alcohol test?

*I don't drink to excess when carrying (occasionally I have the 1 drink with dinner). I don't advocate anybody else drinking anything while carrying. I don't drink and drive. I don't advocate anybody else drink and drive. These questions are hypothetical to understand the requirements of the law as it is written, to further understand our rights and the limitations of them - not to define the line between responsible and reckless behavior in order to justify unwise actions. I'm asking from a philosophical standpoint, not a pragmatic one. I'm not seeking permission to go as close to the line as possible.

Sorry if this disclaimer sounded like a rant, I've just face-palmed too many times when discussing the difference in hotly-debated topics from philosophical and pragmatic viewpoints.

[Oldgringo]

What y'all need is a test case. Volunteers....anybody?

[fickman]

What y'all need is a test case. Volunteers....anybody?

hahaha. No thanks!

Unfortunately, there will inevitably be a high profile incident where somebody goes for the test case, and we could all suffer for it.

[tacticool]

Where the CHL holder is concerned, are there compulsions to comply or defined consequences for refusing a:
- Field sobriety test?
- Breathalyzer test?
- Blood alcohol test?

I don't see any in the law but that doesn't mean some activist judge won't hallucinate after smoking crack.

I also don't know if there's anything preventing the prosecution from telling the jury you refused to take the test and let them draw their on conclusions based on their personal biases rather than the legal principle of reasonable doubt.

[srothstein]

Government Code Chapter 311 is known as the Code Construction Act and tells people (including lawyers and judges) how to read a law. Section 311.011 tells you how to define a word. Section (b) says that if a word has acquired a technical meaning then you use the technical meaning of the word. This meaning can come from either law or some other method. Intoxication has a technical meaning by law, and that technical meaning has carried through to the word as its general meaning. I think it could be shown fairly easily that when people use the word intoxicated, they specifically mean what is defined in chapter 49 of the Penal Code for driving while intoxicated. When they mean anything other than the technical meaning, common usage would be to say drunk, buzzed, or some other slang term like three sheets to the wind.

From this code section, any lawyer would argue that carrying while intoxicated has no lower limit if the faculties are impaired, and has a BAC upper limit of .08 before breaking the law, without regard to your faculties. So, the common argument of if you are okay to drive you are okay to carry matches my understanding of the law. I think that almost every cop in the state, other than an instructor repeating a department interpretation, would say the same thing.

EDIT: I forgot to answer the philosophical question. The SFST is never mandatory. The breath/blood test is only mandatory when the law specifically says so, which is driving or boating while intoxicated. The boating must also have been with a motor more than 50 horsepower. This is contained in Chapter 724 of the Transportation Code, the Implied Consent law.

[gigag04]

Yup. Much like the undefined PI statute: intoxication, in public, danger to self/others. No BAC, or SFSTs req'd.