Carrying and drinking clarified?

[baldeagle]

I just found the following statement on the Texas DPS Concealed Handgun FAQ under the question "Can I carry a handgun when I am drinking?". Note the last line:

According to the Texas Penal Code, it is unlawful for an individual who is intoxicated to carry a handgun. It is important to note that the Penal Code defines “intoxicated” as 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 in the body. Additionally, the Penal Code considers having an alcohol concentration of 0.08 or higher to constitute intoxication.

To me, this means the DPS requires you to pass the same .08 BAC as everyone else to determine if you're too intoxicated to be carrying your weapon, and the argument that it's up to the discretion of the officer on the scene and there's no BAC standard is incorrect. Is my thought process here wrong?

http://www.txdps.state.tx.us/administra ... hlfaqs.htm

Nope. You're misreading the FAQ. It's an either or not an and. If it were an and, the "loss of the normal use" part would be irrelevant. As I've explained elsewhere, the "loss of the normal use" clause is a judgment call both for the officer and for the jury. If you want to roll those dice, by all means do so.

BTW, even without a gun you don't have to blow .08 BAC to be convicted. I know this because I was a foreman on a jury that convicted a woman of DUI without ever having had introduced into evidence a BAC test. But I already told you that in the other thread. So, as someone else has already said .....

[firefighter3217]

Kinda.... except you don't usually thow up on your shoes when you are sleep deprived.

speking of sleep deprivation, from what I understand, you can also get a DUI for driving with a severe lack of sleep... a cop told me that once in Washington, so I'm not sure if it's true here, but think about it... A person who hasn't slept in 48 hours makes about as many bad calls driving as does someone who's had too much to drink...

Any LEOs want to validate that or bustthe myth? I'm not saying that I make a habit of driving while falling asleep, as it scares the living snot out of me, but just for learning's sake I'd like to know...

[MasterOfNone]

Kinda.... except you don't usually thow up on your shoes when you are sleep deprived.

speking of sleep deprivation, from what I understand, you can also get a DUI for driving with a severe lack of sleep... a cop told me that once in Washington, so I'm not sure if it's true here, but think about it... A person who hasn't slept in 48 hours makes about as many bad calls driving as does someone who's had too much to drink...

Any LEOs want to validate that or bustthe myth? I'm not saying that I make a habit of driving while falling asleep, as it scares the living snot out of me, but just for learning's sake I'd like to know...

The thing is, no matter how tired you are, when the cop lights you up, you become wide awake. So the odds of demonstrating impair faculties once you're stopped gets slim.

[Divided Attention]

Kudos to you Mr. ViperBoa

[AJ80]

Kinda.... except you don't usually thow up on your shoes when you are sleep deprived.

speking of sleep deprivation, from what I understand, you can also get a DUI for driving with a severe lack of sleep... a cop told me that once in Washington, so I'm not sure if it's true here, but think about it... A person who hasn't slept in 48 hours makes about as many bad calls driving as does someone who's had too much to drink...

Any LEOs want to validate that or bustthe myth? I'm not saying that I make a habit of driving while falling asleep, as it scares the living snot out of me, but just for learning's sake I'd like to know...

The thing is, no matter how tired you are, when the cop lights you up, you become wide awake. So the odds of demonstrating impair faculties once you're stopped gets slim.

Yes, adrenaline has a way of doing that.

[Keith B]

Kinda.... except you don't usually thow up on your shoes when you are sleep deprived.

speking of sleep deprivation, from what I understand, you can also get a DUI for driving with a severe lack of sleep... a cop told me that once in Washington, so I'm not sure if it's true here, but think about it... A person who hasn't slept in 48 hours makes about as many bad calls driving as does someone who's had too much to drink...

Any LEOs want to validate that or bustthe myth? I'm not saying that I make a habit of driving while falling asleep, as it scares the living snot out of me, but just for learning's sake I'd like to know...

The thing is, no matter how tired you are, when the cop lights you up, you become wide awake. So the odds of demonstrating impair faculties once you're stopped gets slim.

The part about your adrenaline kicking in when the lights come on is accurate. However, in combination with other things, fatigue can enhance the effects of alcohol or drugs and make you a VERY dangerous driver. So, while you may wake up and be coherent when the LEO lights you up, prior to that you could be doing a lot of bobbing and weaving. This would tend to attract the LEO's attention and if you smell like alcohol, and are partially impaired and are marginal on the field sobriety test, the LEO may decide to detain you on probable cause and take you in for a BAC or charge you if they feel there are other substances that are contributing to the impairment.

[srothstein]

speking of sleep deprivation, from what I understand, you can also get a DUI for driving with a severe lack of sleep... a cop told me that once in Washington, so I'm not sure if it's true here, but think about it... A person who hasn't slept in 48 hours makes about as many bad calls driving as does someone who's had too much to drink...

Any LEOs want to validate that or bustthe myth? I'm not saying that I make a habit of driving while falling asleep, as it scares the living snot out of me, but just for learning's sake I'd like to know...

I have no idea about the Washington laws but I can bust the myth for Texas. Sort of. The Penal Code says:

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

So, you must be intoxicated to be arrested for DWI in Texas. And intoxicated is specifically defined as:

(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.

For this discussion, the important part of the definition is the part about introduction of a substance into the body. So, you cannot be arrested for DWI for driving while fatigued in Texas.

But, since I agree with everyone else so far that this really is a dangerous act, I will point out that you can be arrested under the Transportation Code where it says:

Sec. 545.401. RECKLESS DRIVING; OFFENSE. (a) A person commits an offense if the person drives a vehicle in wilful or wanton disregard for the safety of persons or property.
(b) An offense under this section is a misdemeanor punishable by:
(1) a fine not to exceed $200;
(2) confinement in county jail for not more than 30 days; or
(3) both the fine and the confinement.

I think it would be relatively easy to show the disregard for others safety based on what made the officer stop you in the first place. And I wanted to point out that this is a class B misdemeanor, just like a first offense DWI is. So, it can cost you jail time and you CHL. And that is without even mentioning how dangerous it is to your own life. Falling asleep while driving kills a lot of people each year.

[Fangs]

I stick to one drink max if I'm carrying. If I'm going into a situation where I'm DD for a group of friends, but know that we'll be spending a few hours at 51% locations, I'll leave the gun at home and stick to one drink an hour. Though I know that one drink an hour keeps me way under the limit, I also don't want the hassle of smelling like alcohol with a weapon on my person if I get pulled over while driving home.

If I'm not DD, then I'm definitely leaving the boom stick at home.

[WildBill]

I stick to one drink max if I'm carrying. If I'm going into a situation where I'm DD for a group of friends, but know that we'll be spending a few hours at 51% locations, I'll leave the gun at home and stick to one drink an hour. Though I know that one drink an hour keeps me way under the limit, I also don't want the hassle of smelling like alcohol with a weapon on my person if I get pulled over while driving home.

If I'm not DD, then I'm definitely leaving the boom stick at home.

I always thought that a DD didn't drink at all.

[Cobra Medic]

When someone posts to a thread AFTER posting the dead horse, it seems like they're admitting by their subsequent posting that it's not a dead horse situation. The logical conclusion is they posted the dead horse ONLY to stifle people who disagree. (Probably because they had no FACTS with which to REFUTE the people who disagree.)

Interesting.

[WildBill]

When someone posts to a thread AFTER posting the dead horse, it seems like they're admitting by their subsequent posting that it's not a dead horse situation. The logical conclusion is they posted the dead horse ONLY to stifle people who disagree. (Probably because they had no FACTS with which to REFUTE the people who disagree.)

Interesting.

You talking to me?

[gigag04]

[tacticool]

That's what happens when you too much.

[steveincowtown]

So if you passed the test and were under .08 you might be ok, and I think it would depend on the LEO.
I wouldn't recommend it.

EVERYTHING (except the conviction) depends on the LEO. LEO are people, and what they think is acceptable or not will vary greatly. (Warning: Stereotypes coming...) If you run into a small town LEO (who's Grandpa use to have a still, and he himself prefers Bud over Bud Light) his interpretation of intoxicated is surely going to be different then a State Trooper at the Capital in Austin. That being said…IMHO you have nothing to gain by submitting to any form of test, unless it was ordered by a Judge; in this case you don’t have a lot to gain, but you sure do have a lot to lose.

[Fangs]

I stick to one drink max if I'm carrying. If I'm going into a situation where I'm DD for a group of friends, but know that we'll be spending a few hours at 51% locations, I'll leave the gun at home and stick to one drink an hour. Though I know that one drink an hour keeps me way under the limit, I also don't want the hassle of smelling like alcohol with a weapon on my person if I get pulled over while driving home.

If I'm not DD, then I'm definitely leaving the boom stick at home.

I always thought that a DD didn't drink at all.

Hehe, around here it means the most sober person.