Drinking while other person carries

[DoubleJ]

the other was the Texas Pepper Spray Forum comment, huh?

[MBGuy]

Wow. I just did some Googling during my lunch hour, what an education. No wonder everyone thought I was going to get trashed! I'm DEFINITELY not going to be 0.08! Cool. All this time I thought it was insanely easy to get to .08, what a relief!

Thanks all, I feel much better now.

And sorry, I don't want to become a test case, so final answer is that it's going in the trunk. Someone else can be the test.

[txinvestigator]

Be very careful with those little cheap hand held breathilizers. They are not much more than a novelty. First, you should wait at least 15 minutes without drinking, burping, etc, before blowing. This allows the alcohol in your mouth and throat to dissipate.

That's exactly what it is, a $20 cheapy. Readings were all over the place, but my wife always wanted to use the highest reading. That's what happens when you marry someone in auto insurance and that doesn't drink.

So if .08 really doesn't mean anything for DWI, what keeps a LEO from being a bad guy and just accusing you of DWI just because you had 1 or 2 at a restaurant? I'm not accusing LEOs of being bad, I'm just predicting my wife's question when I tell her I really can drive home from our favorite mexican restaurant.

This is a complicated question;

Her is the DWI law;

Texas Penal Code
§ 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.

To make an arrest peace officer must have the elements of the offense. For DWI, they are;

1) A person
2) Is intoxicated
3) while operating a motor vehicle
4) in a public place.


Each element has to be proven. If any one is missing, there is no crime.

The definition of intoxication is

(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.

Since (A) is subjective and difficult to prove, lawmakers came up with a non-subjective number at which all persons are presumed to be intoxicated via (A). It used to be .10%, but today it is .08%. If you are arrested for DWI and all of the other elements are there, AND you test at a .08% or higher, the court is supposed to presume that you are intoxicated. That makes it objective rather than subjective.

DWI laws require that if you were operating a MV on a public roadway or public beach and a peace officer is going to charge you with DWI he must read you a warning, and offer you the opportunity to give a specimen or your breath or blood (his choice) for the purpose of analysis to determine the alcohol concentration or the presence of a controlled substance or drug in your body. (breath tests only read alcohol)

You must give a specimen or your license will be suspended. If you read at .08% or over, then you are intoxicated. If you do not, he can resort to definition (A) for a charge and conviction.

Most, if not all, peace officers are trained in Standardized Field Sobriety Testing (SFST) and you will be a .08 or VERY close before they arrest you.

When I was a cop the BAC presumed level was .10%. I had a a couple of people who were obviously drunk be convicted under .10% because of good video for the jury.

I had one guy blow a 0% who had wrecked several cars. He told the jailers, in spanish, that he had done heroin. CONVICTION! lol

That said, alcohol affects your higher brain functions long before you feel its effects. Your ability to make decisions and multi task, as well as reaction time, are the first to be adversely affected. If you have a Beer with those fajitas, why not let the wife drive. That might be the night you need to be able to have your full reaction time ability to break, steer and anticipate the other drivers next move. ;)

[Photoman]

Sounds like the OP wants his cake and eat it too. Leave the gun at home.

[frankie_the_yankee]

How about you just stop drinking alcoholic beverages an hour or so before leaving? Just switch to ginger ale or soda water. From the way you have described the amount you expect to drink at the affair (a moderate amount, IMO), you should be OK if you just lay off for a while before shoving off.

I did this many times at many a party or night out in my pre-CHL days to avoid DWI. Never had a problem.

These days, I don't drink enough at any one time for it to matter.

Keeping the gun in the trunk is a good idea too.

[MBGuy]

How about you just stop drinking alcoholic beverages an hour or so before leaving? Just switch to ginger ale or soda water. From the way you have described the amount you expect to drink at the affair (a moderate amount, IMO), you should be OK if you just lay off for a while before shoving off.

I did this many times at many a party or night out in my pre-CHL days to avoid DWI. Never had a problem.

These days, I don't drink enough at any one time for it to matter.

Keeping the gun in the trunk is a good idea too.

Yeah, I usually do that. I'm a big water drinker so I switch to water.

Like I said earlier, I thought technically drunk (0.08) was a lot easier to achieve than it really is. Since I was wrong, the original question is a moot point. I'll be fine, but it's going in the trunk anyway as I don't want to carry inside, and it'll be safer from the parking lot thieves in a trunk than in the center console. I really just want it for when I'm coming into the house/property anyway.

Thanks!

[srothstein]

Well, here I go jumping in on something I should probably leave alone, but...

First, let me join in on the same advice everyone else has given you. Don't have that many drinks and a weapon near you. As you will see in a minute, I think you would be okay legally in the situation you describe, BUT I always advise against being a test case or getting near the gray area of the law.

Second, I think there is some doubt about how much you will need to be legally intoxicated. At this chart, it shows a 200 pound man would need 5 drinks in about one hour to be intoxicated. Obviously, this is just an estimate and many factors will affect your BAC. Things like your general health, metabolic rate, and the amount of food in your stomach will affect it. Note that the chart is based on all drinks being equal - 1 oz of 100 proof liquor, 12 ounces of beer, or 5 ounces of wine. I post this just to give you a very rough estimate of what your BAC will be.

http://www.drunkdrivingdefense.com/general/bac.htm

Now, as to whether or not you will be committing a crime, it is hard to say. I disagree with TXI on whether or not you can be legally intoxicated, but I not ehe used the word drunk which has no legal meaning. Chapter 49 of the Penal Code establishes that you are intoxicated at a BAC of .08, no matter how well you are in possession of your faculties. Since there is no legal definition of intoxication in Chapter 46, I believe the rules of code construction and definitions would make the same definition apply. Thus, if you have a CHL and a BAC of .08 and a weapon, you are violating the law.

Now, it is very rare that I get to disagree with Charles on the law, but I believe he analyzed the situation slightly wrong. You will not need to worry too much about being in violation of the Public Intoxication laws since it requires you to not only be intoxicated, but also to be intoxicated to the point where you may be a danger to yourself or others. That is a much harder rule to prove. BTW, this is where most officers get the idea that there is no such thng as legally drunk. You can be drunk and not a danger and you are not breaking the law. They forget that the law for CHL just requires you to meet the definition of intoxicated and in the newer Penal Code, the .08 limit applies to all things. This changed when DWI was moved from the Transportation Code to the Penal Code.

There are two ways this could be actually handled by the officer on the street, and they will differ based on your behavior.

So, here is how I think the situation would be handled, if you have the sense to behave when you are intoxicated. Your wife is driving and has had no alcohol whatsoever. She gets stopped for speeding or something like that. I doubt the officer would ever ask to search the car, but assuming he did find the gun, your wife would claim ownership and you would keep quiet. The officer would apply the new definition of unlawfully carrying where she can have the gun legally and nothing would happen to either of you. This same would apply for other ways the police find the gun, such as a traffic accident. In real life, if you are both cooperative and the gun is there legally for one person, I doubt there would be a problem.

But, there is the other possibility. You are actually drunker than you think you will be and cannot keep your mouth shut. Your wife gets stopped or you have an accident or somehow come into contact with the police. During the contact you say something that gets the police officer interested in you. He identifies you and finds you have a CHL. He is also a little irritated since most cops get fed up pretty easy with drunks. Now he thinks there is a gun in the car and starts to search. He finds the gun. He decides that since you have the CHL and your wife does not, the gun must be yours, no matter what she says about it being her weapon in her car. You are intoxicated while carrying a weapon. You have a CHL. The fact that the gun is in the car which you own (community property rights, after all), the officer wants to book you. He knows that he cannot book you under 46.02 for UCW, but he also knows a CHL cannot have a weapon while intoxicated. He books you under 46.035 for carrying while intoxicated. Now, he will testify in court that he believes you were over the legal limit but he uses SFST procedures to get the BAC. He will not give you a breath test since that is limited to driving/boating/flying type offenses. You go to jail, get booked, get bonded out in the morning.

You will probably win in court, though I do not guarantee it. The law for 46.035 does require you to be carrying under the authority of the CHL, which is not true in the car, but it will take a court case to prove that point.

This is why I come up with the advice to drink less than you were thinking or to leave the weapon home. Worst possible outcome I can think of is that something happens when you are driving home and you get in a shooting. The alcohol would certainly not help the situation. Look at the comments here on the old man who shot the burglars just based on his mouth.

[txinvestigator]

I disagree with TXI on whether or not you can be legally intoxicated,

Umm, wouldn't he be "illegally intoxicated"? [gallagher]Hey, if I'm "legally intoxicated", whats the problem?[/gallagher]

Sort of like with a chl I am Legally armed. ;)

[srothstein]

Pretty good argument there TXI. I think legally intoxicated because he is still legal while he is intoxicated according to the law.

But it reminded me of the argument about PI in the bar. Which redneck comedian was it that had that in his routine? "Intoxicated in Public? I wasn't intoxicated in public. I was in that bar until they threw me out here into the public."

[Kalrog]

Which redneck comedian was it that had that in his routine? "Intoxicated in Public? I wasn't intoxicated in public. I was in that bar until they threw me out here into the public."

That was Ron White. Or at least he is one of the ones who does that joke. He was the least redneck in the blue collar comedy tour.

[Greybeard]

Ron White, from Fritch, Texas.

[KD5NRH]

Is a handgun in the glovebox "on or about" a back seat passenger? Just a thought, since it would be readily accessible to her, but fairly inaccessible to you at that point.

As for explaining to the cop why you're in the back with no front seat passenger, you'll have to figure that one out.

[Photoman]

Like I said earlier, I thought technically drunk (0.08) was a lot easier to achieve than it really is. Since I was wrong, the original question is a moot point. I'll be fine, but it's going in the trunk anyway as I don't want to carry inside, and it'll be safer from the parking lot thieves in a trunk than in the center console. I really just want it for when I'm coming into the house/property anyway.

If you have to use it, and you've been drinking (legally drunk or not), you're going to need a really good lawyer.

[B3XD]

I'm confused. The way it was explained to me is that I do not have to present my CHL if I am not carrying but that it is silly not to. While they are checking it will come up and then they will come back and want to know all kinds of things that they wouldn't have asked if you just presented it. The instructor indicated that they might ask if you were carrying at that time and to respond appropriately, follow directions and be courteous.

So it was not a matter of law but of common sense to present CHL even if not carrying.

Is this correct?

[KBCraig]

Both you and your wife would be carrying a handgun "on or about your person."

If that's true for the co-owners of the car, it would also be true for anyone in the car. Since passengers who don't own the car are not covered under the new car exception, and a gun in the center console is "on or about" everyone in the car, would they be UCW?

Oh, what a mess we create
when first we start to legislate.