Carrying v possession

[KellerBill]

The law says a CHL holder may not carry while intoxicated. The definition of intoxicated is "impaired", which is very subjective. Suppose a CHL holder has a drink and to be safe unloads his CCW and locks it in a Gun Vault in the wheel well of his SUV, placing the magazine and ammo in a backpack behind the last row of seats. Suppose further that the CHL holder is subsequently stopped for a traffic violation. After presenting his DL and CHL to the officer as required, the officer asks where the CCW is located. The CHL holder advises the location. Question, is the CHL holder "carrying" at this point? Obviously, he is "in possession", which Texas defines as having "care, custody, management and control" of the CCW, but is he "carrying" and therefore subject to CHL revocation if the LEO decides he is "impaired"? The law states that having a CCW unloaded and locked in a car trunk is not carrying, I think. SUVs don't have trunks. Thoughts?

[srothstein]

Technically, the law does not say just carrying, but says carrying on or about one's person. There are a lot of court cases that have defined the phrase on or about your person as within easy reaching or lunging distance. That is, if you could easily grab it without having to exit your seat it is on or about your person. Behind the third row of seats in an SUV would not be within easy reaching distance of the driver and therefore would not be carrying. Basically, inside any locked container that would take some type of manipulation to open would no longer be on or about your person. I hesitate to say any container because of the new style that open if you just put your hand in on the buttons and they read your fingerprints. I am not as sure that this would qualify because of the ease of access.

[ScottDLS]

The law says a CHL holder may not carry while intoxicated. The definition of intoxicated is "impaired", which is very subjective. Suppose a CHL holder has a drink and to be safe unloads his CCW and locks it in a Gun Vault in the wheel well of his SUV, placing the magazine and ammo in a backpack behind the last row of seats. Suppose further that the CHL holder is subsequently stopped for a traffic violation. After presenting his DL and CHL to the officer as required, the officer asks where the CCW is located. The CHL holder advises the location. Question, is the CHL holder "carrying" at this point? Obviously, he is "in possession", which Texas defines as having "care, custody, management and control" of the CCW, but is he "carrying" and therefore subject to CHL revocation if the LEO decides he is "impaired"? The law states that having a CCW unloaded and locked in a car trunk is not carrying, I think. SUVs don't have trunks. Thoughts?

I'll start with one at a time... For purposes on 46.02 Unlawful Carrying of a Weapon (UCW) carrying a handgun means it is "on or about your person". There is some case law that defines this as also being in the passenger compartment of your motor vehicle (whether it must be in your reach is debatable...). So my answer for this question...if it's in your wheel well, or trunk, or pickup bed, you are NOT carrying it on or about your person. So you don't need a CHL, or the authority of the Motorist Protection Act part of 46.02, (which basically says you don't need a CHL to carry in your car).

Now to your statement:

The definition of intoxicated is "impaired", ...

No it is not. It is...straight from the Texas Penal Code

PC §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.

Which, by the way is the exact same definition used for DWI in Texas...that's driving while INTOXICATED. There is use of the word "impaired" in this definition.

So the conclusion is, if you feel you could be judged intoxicated by ingestion of 1 drink... (and para (A) is to your point very subjective, para (b) is not), then you should neither drive, nor carry.

The FACT of intoxication is one to be tried by a jury if you are charged for "CWI" or DWI, but be aware that the legal standard is exactly the same for both.

And welcome to the TexasCHL forum! I'm just one of the members...some would say one of the more annoying members.

[sugar land dave]

Welcome to the forum. Hope it is helpful for you as it has been for many of us.

[KellerBill]

Thanks for the prompt replies!
Concerning "impaired", I think we are on the same page here. I used impaired as a shortcut for "not having the normal use....etc. My point was it is entirely subjective. I spent a number of years in law enforcement and I saw many fellow officers arrest people for PI that I would have not arrested.
In the case of a DWI arrest, then yes, I think most offices would lean on the measurable standard. I should have been clearer. My "suppose" scenario was predicted on a PI encounter where the standard is totally subjective.
I also have heard and read that one is not "carrying" if the CCW is locked up and out of reach, but I haven't actually seen the relevant court cases.
By the way, I recently had this discussion with some of my old workmates and you would be amazed how many believe that "anywhere" in the interior of an SUV is "carrying"', court cases be damned.

[RonW956]

I think the most important point here has been missed. 1, In Texas it is not required to inform the officer that you have a CHL however out of respect I would tell him and listen to his instructions, (if any) However the most important issue is if you are stopped & arrested for a DWI, you can kiss your CHL goodby for the next 5 years, it will be revoked. Lesson learned? Leave the firearm at home and have someone else drive or just dont drink & drive, period.

[ScottDLS]

Thanks for the prompt replies!
Concerning "impaired", I think we are on the same page here. I used impaired as a shortcut for "not having the normal use....etc. My point was it is entirely subjective. I spent a number of years in law enforcement and I saw many fellow officers arrest people for PI that I would have not arrested.
In the case of a DWI arrest, then yes, I think most offices would lean on the measurable standard. I should have been clearer. My "suppose" scenario was predicted on a PI encounter where the standard is totally subjective.
I also have heard and read that one is not "carrying" if the CCW is locked up and out of reach, but I haven't actually seen the relevant court cases.
By the way, I recently had this discussion with some of my old workmates and you would be amazed how many believe that "anywhere" in the interior of an SUV is "carrying"', court cases be damned.

Now that you point out the PI angle I might point out that the way I read it is... PI is theoretically even harder to prove...

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Key word here intoxicated...that still has the definition per PC 49.01, now the degree must be ...that the person may endanger the person or another. So if you are not intoxicated, then you are by definition NOT intoxicated to any degree. That doesn't mean that you're still not a danger to yourself or others, but one could be that while being completely sober. I'm not being facetious here. In order to become intoxicated you make a conscious decision to ingest, snort, smoke, whatever... However, someone with a serious physical malady, not related to a substance should not be charged with PI, even if they are arguably a danger to themselves and/or others in a public place. There may be something else to charge them with depending on behavior, but not PI.

Now this aside, no one is going to the mat with their DWI lawyer to fight a class "C" PI citation. Also I assume there's no implied consent law to take away their "walking license" (administratively) civilly for refusing a breathalyzer or blood draw.

[TexasCajun]

I think the most important point here has been missed. 1, In Texas it is not required to inform the officer that you have a CHL however out of respect I would tell him and listen to his instructions, (if any) However the most important issue is if you are stopped & arrested for a DWI, you can kiss your CHL goodby for the next 5 years, it will be revoked. Lesson learned? Leave the firearm at home and have someone else drive or just dont drink & drive, period.

Point of clarification: If you are carrying a handgun "on or about your person", you are required to show your CHL if an officer requests ID. However, there is no longer a penalty for not showing your CHL. If you are not carrying a handgun "on or about your person", then you are not required to show your CHL when asked for ID. Now I've heard that your CHL status shows up when LEOs run your license. So that could create an apprehensive situation.

[oohrah]

GC §411.205. REQUIREMENT TO DISPLAY LICENSE. If a license holder is
carrying a handgun on or about the license holder’s person when a magistrate or
a peace officer demands that the license holder display identification, the license
holder shall display both the license holder’s driver’s license or identification
certificate issued by the department and the license holder’s handgun license.

[thetexan]

Thanks for the prompt replies!
Concerning "impaired", I think we are on the same page here. I used impaired as a shortcut for "not having the normal use....etc. My point was it is entirely subjective. I spent a number of years in law enforcement and I saw many fellow officers arrest people for PI that I would have not arrested.
In the case of a DWI arrest, then yes, I think most offices would lean on the measurable standard. I should have been clearer. My "suppose" scenario was predicted on a PI encounter where the standard is totally subjective.
I also have heard and read that one is not "carrying" if the CCW is locked up and out of reach, but I haven't actually seen the relevant court cases.
By the way, I recently had this discussion with some of my old workmates and you would be amazed how many believe that "anywhere" in the interior of an SUV is "carrying"', court cases be damned.

Yeah, and the subjectivity is granted to the prosecutor! Can he prove impaired or not having the 'normal use of'? I wouldn't want to place my self and my future in the subjective hands of a prosecutor. That's why I will never take a sip while carrying and advise all of my students likewise.

tex

[A-R]

This is really simple: if you're too intoxicated to carry then you're too intoxicated to drive. So the traffic stop with you driving should not occur in the first place.