Alcohol and Carrying Question

[Chuck_wall]

I've been trying to sift through the forum and other sources to answer a few questions. I'm hoping y'all can help. I've heard numerous variations of the law from numerous people from zero tolerance on down. Obviously, drunken carry is illegal, but I'm trying to figure out exactly what the other lines drawn by the law are. Questions are below. Thanks again.

1. What is the legality of driving, while under the .08 limit, with a CHL while not carrying?

2. What is the legality of driving, while under the .08 limit (say a beer with dinner), with a CHL while carrying?

[Keith B]

I've been trying to sift through the forum and other sources to answer a few questions. I'm hoping y'all can help. I've heard numerous variations of the law from numerous people from zero tolerance on down. Obviously, drunken carry is illegal, but I'm trying to figure out exactly what the other lines drawn by the law are. Questions are below. Thanks again.

1. What is the legality of driving, while under the .08 limit, with a CHL while not carrying?

2. What is the legality of driving, while under the .08 limit (say a beer with dinner), with a CHL while carrying?

First off, I Am Not A Lawyer. However, the Texas state statutes have two definitions for intoxication. The first is not having the normal use of physical or mental skills due to alcohol consumption, a controlled substance, a drug, or a combination of two or more of these substances.

The second definition is having a blood alcohol content (BAC) of .08 percent or higher. A driver can not use the defense that the intoxicating substance was prescription medication. Any substance, legal or illegal, that renders a person unable to drive safely may lead to a DWI charge.

And, since there is no clear definition for intoxication for carrying, then you have to assume it means the same for that since it is stated in the statutes elsewhere.

So, IMO, you can be deemed intoxicated by a law enforcement officer under the first definition, even without being .08 whether driving or carrying.

[MoJo]

MoJo's simple rule - - - If you are going to drink don't drive, If you are going to drink, don't tote. have a designated driver and a designated toter. Keeps you outta jail.

[frazzled]

MoJo's simple rule - - - If you are going to drink don't drive, If you are going to drink, don't tote. have a designated driver and a designated toter. Keeps you outta jail.

[Chuck_wall]

Excellent advice my friends. I completely agree and have a designated driver and toter when necessary. 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 driving, even when not carrying?

[Keith B]

The main point of disagreement is when you have a CHL, is there zero tolerance on driving, even when not carrying?

No. You fall under the same law as everyone else. Having a CHL makes no difference when not carrying.

As for carrying and drinking, while it is not clearly defined, IMO you still fall under the same law and requirements for intoxication. However, AFAIK it has never been tested in court, so it is an assumption that it is the same. IANAL

[Skiprr]

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.)

[Dudley]

Either you're intoxicated or you're not. If you're too drunk to wear a holstered gun, you're too drunk to sit in a parked car, much less drive a car.

[chabouk]

Either you're intoxicated or you're not. If you're too drunk to wear a holstered gun, you're too drunk to sit in a parked car, much less drive a car.

Intoxication isn't pregnancy.

While the law defines a bright line of 0.08 BAC for driving, in reality there is no A/B switch for intoxication.

[xdtom40]

I may be in the minority, but I think guns and any alcohol are a bad combo. If I had to use my CCW, I would not want alcohol on my breath. IDK, just feel that way.

[MoJo]

.08 is the legal definition of imparement . 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.

[Originalist]

.08 is the legal definition of imparement . 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.

0.08 is one of two legal definitions of intoxication which is different than impaired. Big difference in the world of legalese.

Impairment begins with even the first drink so I am of the opinion to never drink and drive/carry..... If you have ever taken the NHTSA SFST class you learn the body processes 0.00something of alcohol per hour so even if you are 0.08 it takes your body a long time to get all the alcohol out of your system. Also, if you are gonna drink the worst thing you can do is eat right before because that causes the alcohol to sit in your stomach and hit you all at once as opposed to it absorbing as you drink it. Just some gee whiz info.

[MoJo]

AFcop you are correct. According to DPS at instructor school if you are impared regardless if BAC you are in the wrong.

[baldeagle]

I once was the foreman on a petit jury that found a woman guilty of DUI. Although she demonstrated impairment by erratic driving, failing an on-site eye nystagmus test and difficulty walking a line at the police station, some jurors were still not ready to convict. What convinced them that she was guilty was that, when she was pulled over, she was driving her friends, one of whom was passed out in the back seat, back to their cars so that they could drive home. Although a BAC was never taken because she refused, her decision to allow her friends to drive drunk demonstrated "the loss of the normal use of the faculties due to the introduction of alcohol into the bloodstream".

[Originalist]

I once was the foreman on a petit jury that found a woman guilty of DUI. Although she demonstrated impairment by erratic driving, failing an on-site eye nystagmus test and difficulty walking a line at the police station, some jurors were still not ready to convict. What convinced them that she was guilty was that, when she was pulled over, she was driving her friends, one of whom was passed out in the back seat, back to their cars so that they could drive home. Although a BAC was never taken because she refused, her decision to allow her friends to drive drunk demonstrated "the loss of the normal use of the faculties due to the introduction of alcohol into the bloodstream".

That really opens your eyes to show why observations and documentation are paramount..... A conviction based on parameters outside the normal police observations (i.e. alcohol related observations (odor, eyes, etc.) and SFST's.)