Drinking while "Carrying"

[RedRaiderDavid]

I thought that title would get some attention. lol I found this site yesterday and enjoyed reading through the different areas. I am currently waiting on my CHL, all my paperwork is submitted. I do have a question that I wasn't quite clear on from CHL class and I'm curious.
First let me be clear, I have no intention of taking my gun when I drink, guns and alcohol don't mix even with the most experienced and best intentioned people. I am also very conscious about only having 1 or 2 when I have to drive.
Lets say for argument sake I am out running errands, my pistol is in the center console of my car and a friend calls and wants to meet for a beer. I've been out all day and completely forget about the pistol. Normally if its on me I can put it in the trunk and am officially unarmed but I have a few drinks, am by no means drunk and am well below the states legal limit. I head home, my pistol is still in the center console, not in the trunk, so I am officially armed by CHL law. Am I in violation of the law? The class made it out to be a under the influence OR over the legal limit of .08, not AND.

[apostate]

Lets say for argument sake I am out running errands, my pistol is in the center console of my car and a friend calls and wants to meet for a beer.

Don't drink and drive.

[rotor]

You don't need a CHL to have your gun in your car concealed. Why does it have to be in your trunk? This is not legal advice of course.

[RedRaiderDavid]

You don't need a CHL to have your gun in your car concealed. Why does it have to be in your trunk? This is not legal advice of course.

Well this is the way the instructor told it, hence the confusion, I'll paraphrase as much as possible. Yes you can have a gun in your car without a CHL but if you have one and there is a gun inside any vehicle you are in you are considered to be "carrying" it and are therefore bound by CHL laws in addition to normal laws. The only way to not be considered carrying is to have the gun in a trunk or locked toolbox in the bed of a truck. Anywhere else whether locked or not does not work, SUV there is no where you can put it. That wasn't really legal advice either and he didn't expand on it. Most likely because of course the best rule is don't drink and drive and certainly don't drink and have a gun handy. I just like to be clear on things whether they affect me or not.
He did say that he had asked several LEOs about it and some said they wouldn't worry about it if you weren't drunk and others said they would arrest you immediately, but whats the law?

[jmra]

Lets say for argument sake I am out running errands, my pistol is in the center console of my car and a friend calls and wants to meet for a beer.

Don't drink and drive.

Best advice you're gonna get.

[mattdfw]

If you have any alcohol in your system you're in jeopardy of:

1.) Going to jail for unlawful carry
2.) If a self defense situation arises (shooting):

• a.) Enduring a vigorous prosecution that potentially wouldn't of happened otherwise
  b.) Civil lawsuits (If you are justified in shooting a perp, that is a defense to civil liability. However, if you have a 'Flier' and hit
  an innocent civilian, expect to be deemed 'reckless'.

Legal Definition of Intoxication

• • (a) “Intoxicated” is defined as not having the normal use of mental or physical faculties by the reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, any other substance into the body; OR
    
    (b) Having an alcohol concentration of 0.08 or higher.

During my CHL instructor class, an interesting question regarding this matter was raised; what is the purpose of having one or two drinks? Why not a Coke or Dr. Pepper? If having one or two drinks is for the purpose of relaxation, then sub-section (a) of the above law could come into play (being you're not under a 'normal' state of mind, you're chemically relaxed).

You should also consider this: how many times have you seen an officer arresting someone on "COPS", where the person was so drunk they couldn't stand-up. When asked how many beers they had, the response is usually "a couple" or "two". I can't say for sure, but I wouldn't be surprised if a lot of police officers apply a multiple to the answer they get (if you say two, they think four; if you say 3, that means 6, ect.)...

Keep in mind, I'm not a lawyer and can't give you legal advice, however I can state what I know for a fact: "guns and alcohol don't mix". With that said, understand that with your CHL, you will be held to a higher standard than Joe Blow.

The truth of the matter is there are no 'Black and White' answers regarding the law. There is always a grey area thus resulting in the different answers from different police officers (or juries). Whether a police officer decides to make an arrest is totally up to their own personal discretion.

In short, if you choose to consume alcohol in public while in possession of a firearm, you're putting yourself and family at an unnecessary risk.

I apologize if I sound preachy, I don't mean to. I'm just trying to give you a little 'food for thought' while trying to explain my understanding of the law regarding this matter.

Hope I helped a little...

Matt

[mattdfw]

After re-reading this thread, there are quite a few things that need to be discussed... It's 6am and I don't have time right now. I'll be back later...

[jbarn]

I
Lets say for argument sake I am out running errands, my pistol is in the center console of my car and a friend calls and wants to meet for a beer. I've been out all day and completely forget about the pistol. Normally if its on me I can put it in the trunk and am officially unarmed but I have a few drinks, am by no means drunk and am well below the states legal limit. I head home, my pistol is still in the center console, not in the trunk, so I am officially armed by CHL law. Am I in violation of the law? The class made it out to be a under the influence OR over the legal limit of .08, not AND.

The definition for intoxication for carrying is the same as for DWI. However, for carrying while intoxicated you are not going to be offered a breath test. If the officer has probable cause to believe you are intoxicated, then you can be arrested.

Now to your statement;

I head home, my pistol is still in the center console, not in the trunk, so I am officially armed by CHL law.

I disagree. If you are carrying in your car, you are not carrying under the authority of your CHL. Let's look at the actual law

Texas Penal Code
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
.
.
.
(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.

The law does not read that a License holder commits an offense if he carries while intoxicated. It says he commits an offense IF he carries under the authority on the CHL law AND carries while intoxicated. A person carrying in a car is not carrying under the authority of a CHL.

Of course you need to ask yourself if a LEO will know that fine nuance of the law. For example, there was a post on another forum where a news report was shown of a person who has a CHL arrested for DWI and carrying while intoxicated.

So the safe thing is to not get intoxicated and drive or have your handgun on or about your person. If you are intoxicated enough to get popped for DWI you are certainly intoxicated enough to be arrested for carrying while intoxicated.

[jbarn]

You don't need a CHL to have your gun in your car concealed. Why does it have to be in your trunk? This is not legal advice of course.

Well this is the way the instructor told it, hence the confusion, I'll paraphrase as much as possible. Yes you can have a gun in your car without a CHL but if you have one and there is a gun inside any vehicle you are in you are considered to be "carrying" it and are therefore bound by CHL laws in addition to normal laws.

As I posted above I do not believe that to be correct. The law also use the phrase "on or about your person". On your person means physically on you. About your person means within your immediate access.

The only way to not be considered carrying is to have the gun in a trunk or locked toolbox in the bed of a truck. Anywhere else whether locked or not does not work, SUV there is no where you can put it.

That is incorrect.

He did say that he had asked several LEOs about it and some said they wouldn't worry about it if you weren't drunk and others said they would arrest you immediately, but whats the law?

See my post above for the actual law. It is simply illegal to carry while intoxicated. See penal code chapter 49 for the definitions for intoxicated. Mattdfw also posted the definition in this thread.

[jbarn]

If you have any alcohol in your system you're in jeopardy of:

1.) Going to jail for unlawful carry
2.) If a self defense situation arises (shooting):

• a.) Enduring a vigorous prosecution that potentially wouldn't of happened otherwise
  b.) Civil lawsuits (If you are justified in shooting a perp, that is a defense to civil liability. However, if you have a 'Flier' and hit
  an innocent civilian, expect to be deemed 'reckless'.

I disagree with the use of the term "any". Do the police routinely blood test for alcohol people involved in self defense shootings? I think a flier would be looked at regardless of alcohol consumption, wouldn't it?

The self defense laws do not vanish when a person consumes alcohol.

If you appear intoxicated it might be an issue, but unless one appears intoxicated how would it be an issue? Don't get me wrong, I believe people are impaired at below the .08% presumed level.

During my CHL instructor class, an interesting question regarding this matter was raised; what is the purpose of having one or two drinks? Why not a Coke or Dr. Pepper? If having one or two drinks is for the purpose of relaxation, then sub-section (a) of the above law could come into play (being you're not under a 'normal' state of mind, you're chemically relaxed).

Yeah, they told us that too. That is their OPINION. I saw no case law or legal opinion about that. If that was the case, then driving has the same. The definition is the same for both. Our legislators could have easily made it unlawful to consume or have any detectable amount of alcohol in your system be a violation, but they didn't.

I don't drink anymore. But when I did I had no problem having a beer with my steak at Saltgrass while carrying.

And like everyone else, I am not a lawyer and this is my opinion.

[RPBrown]

The .08 to be legally drunk does not apply to CHL. In fact, there is no definition of what legally drunk is in the law. With that said, you can technically be arrested for 1 mouthful of alcohol if the LEO has a mind to.

[A-R]

There are two ways to make this whole intoxication + guns + driving debate simple:

1. No intoxicants of any kind while operating a vehicle or possessing a firearm

2. If you're sober enough to drive then you're sober enough to carry (I'm always puzzled by folks who put the pistol in the trunk then drive home - if you're too intoxicated to carry then you're also too intoxicated to drive)

How you choose to operate is your choice. #1 is a strict zero tolerance method that works for many people, perhaps especially those who know they have a difficult time judging their own intoxication level. #2 is a more pragmatic approach for those who are confident they know when/where to draw the line (ex: a glass of wine with dinner is OK; a "couple" of beers after work with buddies, likely is not)

Again, choose which method of staying in compliance with the law and/or your lawyer's (not your CHL instructor's) advice works best for you.

* remember, intoxicants can be many things - o.t.c., Rx, or illegal drugs - not merely alcohol

[Keith B]

The .08 to be legally drunk does not apply to CHL. In fact, there is no definition of what legally drunk is in the law. With that said, you can technically be arrested for 1 mouthful of alcohol if the LEO has a mind to.

That is not correct. The TPC 46.035 states:

(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.

Subchapter H, Chapter 411, Government Code says:

GC §411.171. DEFINITIONS. In this subchapter:
.....
(6) “Intoxicated” has the meaning assigned by Section 49.01, Penal Code.

And, 49.01 says:

§ 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.

If you have a BAC of .08 or greater, then you are legally intoxicated. You can be legally intoxicated below that level. And having one mouthful of alcohol does not technically make it legal to arrest you. You have to be impaired as in section (A) above, or be ..08 or greater as in section (B) to be legally arrested. Now, can a LEO arrest you even if you are not intoxicated because they smell alcohol on your breath and you are carrying? Yeah, but is it legal? Maybe not. Alcohol on your breath would give a LEO reasonable suspicion to check and see if you were intoxicated. At that point they would need to show that you were impaired or greater than .08 BAC to have probable cause to legally arrest you for Unlawful Carry due to intoxication.

So, to sum it up .08 or greater does apply for CHL as well as DWI, and means you are legally intoxicated whether you act impaired or not, but you can be legally intoxicated with less BAC than that if you are impaired.

[RoyGBiv]

^^^ Keith must get tired of posting that answer... I think I've seen it >25 times under his handle.

Nothing to add other than Keith is correct, IMO. Anything more is just complicating something that is already clearly defined. You can argue ad infinitum about how an officer goes about making a judgment re: intoxication below 0.08 BAC. Training, department standards, subjective factors, officer inclinations all play a factor in that decision, but the law itself is pretty clear.

[oohrah]

Statistics show that while CHLers are 20 times less likely to violate the law, the two most often offenses committed by CHLers are DWI/DUI and Illegal Carry. I'm betting most of the illegal carries are tied to the DWIs. (ref. Dallas Morning News last year)

I changed my whole lifestyle once I got my CHL, it's not worth the risk of getting stopped and losing rights/privileges.