TexasCHLforum.com

What handbooks? The ones put out by TCHA? That is not DPS.

TxLobo wrote:

Keith B wrote:Intoxication laws are the same for CHL and DWI. Period. .08 BAC or greater is intoxicated. Less than that that is officer discretion as to if you meet the statute standards.

DPS will tell you that .08 is not the standard, but that is because you can be less and still intoxicated per 49.01, both while driving or carrying.

I'm going to be on the disagreement side of that argument... .08 is set for DUI.. There is no blood test, no urine test and no breath test, there is no standard for Public Intoxication.. it's simply
1. a person,
2. in a public place
3. while intoxicated to the degree that the person may endanger the person or another.

it's been that way since the 80's when DWI was .10... Now if that's 1 drink for someone who does not partake, or a 6 pack or several mixed drinks for someone who drinks heavy, it's a judgement call by an officer for Public Intoxication..

Sorry, no. TPC 46.035 (d) applies to a CHL and 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.

So, you go to that chapter of the Government code Sec. 411.171 DEFINITIONS and it says:

(6) "Intoxicated" has the meaning assigned by Section 49.01, Penal Code.

And, then TPC 49.01 says:

(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.

So, this is the strict definition in the law for a CHL. Period. This also applies in the case of DWI

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.

BTW, DUI is not .08. Texas has DWI (Driving While intoxicated) for a person 21 or over. DUI (Driving Under the Influence) is an offense under the alcoholic beverage code for minors (under 21) and it is ANY detectable level of alcohol

Section 106.041. Driving Under the Influence of Alcohol by Minor
(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system.

And Public Intox does not play into the definition for CHL as the statutes are defined totally. You could be arrested for PI, but unless you meet the definition for Intoxicated under TPC 49, then you could not be charged under 46.035.

Techncally true but practically speaking that's unlikely. If somebody is so drunk they're a danger to themself or others, there is a near 100% probability they are a danger, in whole or in part, BECAUSE they are physically or mentally impaired.

I was talking about CHL-16, CHL handbooks published by DPS. If you are a new instructor, you might have never seen one. :)

DPS used to give them to every applicant. Then they started selling them. :( I print them out give to my students.

Keith B wrote:

TxLobo wrote:

Keith B wrote:Intoxication laws are the same for CHL and DWI. Period. .08 BAC or greater is intoxicated. Less than that that is officer discretion as to if you meet the statute standards.

DPS will tell you that .08 is not the standard, but that is because you can be less and still intoxicated per 49.01, both while driving or carrying.

I'm going to be on the disagreement side of that argument... .08 is set for DUI.. There is no blood test, no urine test and no breath test, there is no standard for Public Intoxication.. it's simply
1. a person,
2. in a public place
3. while intoxicated to the degree that the person may endanger the person or another.

it's been that way since the 80's when DWI was .10... Now if that's 1 drink for someone who does not partake, or a 6 pack or several mixed drinks for someone who drinks heavy, it's a judgement call by an officer for Public Intoxication..

Sorry, no. TPC 46.035 (d) applies to a CHL and 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.

So, you go to that chapter of the Government code Sec. 411.171 DEFINITIONS and it says:

(6) "Intoxicated" has the meaning assigned by Section 49.01, Penal Code.

And, then TPC 49.01 says:

(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.

So, this is the strict definition in the law for a CHL. Period. This also applies in the case of DWI

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.

BTW, DUI is not .08. Texas has DWI (Driving While intoxicated) for a person 21 or over. DUI (Driving Under the Influence) is an offense under the alcoholic beverage code for minors (under 21) and it is ANY detectable level of alcohol

Section 106.041. Driving Under the Influence of Alcohol by Minor
(a) A minor commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system.

And Public Intox does not play into the definition for CHL as the statutes are defined totally. You could be arrested for PI, but unless you meet the definition for Intoxicated under TPC 49, then you could not be charged under 46.035.

Can we sticky this someplace?

it's a common discussion after someone misses the facts and or was told differently by someone they believed to be a subject matter expert.

I am writing this so the forum members will correct my incorrect thought process. I was sitting in the Instructor renewal last Tuesday and I had an epiphany of sorts. The DPS Sergeant Instructor implied he would arrest any CHL holder that smelled of alchohol. His statement was alchohol and guns don't mix and one beer or glass of wine is a no no.

I recall reading the reason that the penalty for failure to display your license when asked by a LEO for ID was the MPA. People without a CHL are not required to inform the LEO if they have a gun, but we still are (just no penalty). Stay with me here...If I am stopped by a LEO and I have a handgun on or about my person, I am required to tell the LEO and they will possibly take me to jail if I have had one beer. If a non CHL person with a gun in his car is stopped by a LEO, he is not required to tell the LEO about the gun and he will be judged on the .08 BAC. I believe they are not allowed to search the car unless a crime is committed. I know the non CHL should not lie to the LEO if asked about weapons, but if that person knows that the level of intoxication goes way down and being arrested goes way up with the LEO knowing about that gun, then they very well might lie. I don't drink and drive or carry so this is a moot point for me, but it sounds like we are more at risk of being arrested than a non CHL holder.

One more question. Are off duty LEO's allowed to carry and consume alchohol? Are we held to a higher standard than off duty LEO's. Talk amoungst yourselves...

We can what if it to death.. a LEO can arrest you for anything they believe you have violated,, his Sergeant may override him and send you on your way, the DA may elect not to prosecute and send you on your way, a judge and or jury may choose not to convict and send you on your way... meanwhile, the LEO still arrested you days, weeks or months ago, for his personal understanding of a law they believe you violated.

The LAW has a definition of intoxicated.. A LEO "Should" apply that standard to the person in front of them and make an educated, professional decision on if the person is intoxicated in accordance to the law. However, a LEO may have the attitude you observed, disregard the standard set forth in the law, and arrest you anyway. Reality and stats http://www.txdps.state.tx.us/rsd/chl/re ... vrates.htm" onclick="window.open(this.href);return false; seem to indicate ... there is not a whole lot of willynilly arresting of CHL's for any reason, never mind carrying while intoxicated.

howdy wrote:I am writing this so the forum members will correct my incorrect thought process. I was sitting in the Instructor renewal last Tuesday and I had an epiphany of sorts. The DPS Sergeant Instructor implied he would arrest any CHL holder that smelled of alchohol. His statement was alchohol and guns don't mix and one beer or glass of wine is a no no.

I recall reading the reason that the penalty for failure to display your license when asked by a LEO for ID was the MPA. People without a CHL are not required to inform the LEO if they have a gun, but we still are (just no penalty). Stay with me here...If I am stopped by a LEO and I have a handgun on or about my person, I am required to tell the LEO and they will possibly take me to jail if I have had one beer. If a non CHL person with a gun in his car is stopped by a LEO, he is not required to tell the LEO about the gun and he will be judged on the .08 BAC. I believe they are not allowed to search the car unless a crime is committed. I know the non CHL should not lie to the LEO if asked about weapons, but if that person knows that the level of intoxication goes way down and being arrested goes way up with the LEO knowing about that gun, then they very well might lie. I don't drink and drive or carry so this is a moot point for me, but it sounds like we are more at risk of being arrested than a non CHL holder.

One more question. Are off duty LEO's allowed to carry and consume alchohol? Are we held to a higher standard than off duty LEO's. Talk amoungst yourselves...

Actually, no they won't. They will be judged on the intoxication definition of TPC 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.

This is the same standard that that a person carrying or not carrying will be judged on (Public Intoxication definition not withstanding).

So, while Sgt. Baumsch has his standard for arrest on smell of alcohol, the standard should also apply to a person he smells alcohol on their breath if just driving and no gun, CHL or not. The law says you must meet the criteria above in (A) or (B). The real test will be when he has to testify WHY he believed you met the definition of (A) above if you are below .08 BAC (B).

And nobody's going to comment about Bamsch still preaching zero tolerance? And whether that's really what he said?

Keith B wrote:

howdy wrote:I am writing this so the forum members will correct my incorrect thought process. I was sitting in the Instructor renewal last Tuesday and I had an epiphany of sorts. The DPS Sergeant Instructor implied he would arrest any CHL holder that smelled of alchohol. His statement was alchohol and guns don't mix and one beer or glass of wine is a no no.

I recall reading the reason that the penalty for failure to display your license when asked by a LEO for ID was the MPA. People without a CHL are not required to inform the LEO if they have a gun, but we still are (just no penalty). Stay with me here...If I am stopped by a LEO and I have a handgun on or about my person, I am required to tell the LEO and they will possibly take me to jail if I have had one beer. If a non CHL person with a gun in his car is stopped by a LEO, he is not required to tell the LEO about the gun and he will be judged on the .08 BAC. I believe they are not allowed to search the car unless a crime is committed. I know the non CHL should not lie to the LEO if asked about weapons, but if that person knows that the level of intoxication goes way down and being arrested goes way up with the LEO knowing about that gun, then they very well might lie. I don't drink and drive or carry so this is a moot point for me, but it sounds like we are more at risk of being arrested than a non CHL holder.

One more question. Are off duty LEO's allowed to carry and consume alchohol? Are we held to a higher standard than off duty LEO's. Talk amoungst yourselves...

Actually, no they won't. They will be judged on the intoxication definition of TPC 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.

This is the same standard that that a person carrying or not carrying will be judged on (Public Intoxication definition not withstanding).

So, while Sgt. Baumsch has his standard for arrest on smell of alcohol, the standard should also apply to a person he smells alcohol on their breath if just driving and no gun, CHL or not. The law says you must meet the criteria above in (A) or (B). The real test will be when he has to testify WHY he believed you met the definition of (A) above if you are below .08 BAC (B).

Only IMHO, but I'm sure that KeithB is correct. However, that still doesn't alleviate the financial and social pain of "you can beat the rap, but not the ride". Best course of action when carrying, as it is when driving, is to drink zero alcohol. And I am NOT against drinking alcohol, I enjoy a nice cold Shiner Beer now and again.

"Best course of action when carrying, as it is when driving, is to drink zero alcohol."

[/quote]
The officer, with no reason to lie, [/quote]

I can tell that you have never been a defense lawyer representing someone falsely accused of DWI, with a cop lying under oath in court, with evidence proving that he's lying.
Been there, done that.

Cops are people. People lie.

howdy wrote: I was sitting in the Instructor renewal last Tuesday and I had an epiphany of sorts. The DPS Sergeant Instructor implied he would arrest any CHL holder that smelled of alchohol. His statement was alchohol and guns don't mix and one beer or glass of wine is a no no.

This is what we get when we allow police to make laws. The officer you are quoting (whoever he was) is trying to set his own standard, rather than simply enforcing the laws of the state.

RossA wrote:

howdy wrote: I was sitting in the Instructor renewal last Tuesday and I had an epiphany of sorts. The DPS Sergeant Instructor implied he would arrest any CHL holder that smelled of alchohol. His statement was alchohol and guns don't mix and one beer or glass of wine is a no no.

This is what we get when we allow police to make laws. The officer you are quoting (whoever he was) is trying to set his own standard, rather than simply enforcing the laws of the state.

That is not the definition the law. While everybody interprets written law different, I know how I enforce it as taught: If they cannot care for their safety or the safety of others then they 'could' be arrested. Not saying 'should' as each situation is different.

MoJo wrote:Yes, 0.08% is the point where there is no question of one's intoxication. Less than 0.08% there is a burden of proof on the officer making the arrest as to impairment.

Excuse me but I suspect that the reality of the situation is that the burden of proof will fall on the detained/arrested party to prove that there was no impairment. Of course, this could all hinge on who the detained party is/was and/or who knows whom.