Several Legal Questions

[dburke87]

For starters, I do have a CHL for what it's worth, and I am 21. Assume that in all of these situations I would under normal circumstances be within my legal right to carry (ex.: not in a 51% or 30.06 or any other place CHLs cannot carry).

1. As far as I know I can carry any legal long gun in my car whenever I want.

a. Do I have to conceal it?

b. I know I can't carry a pistol when I have alcohol in my system, even if I'm under 0.08, but can I carry a shotgun or rifle?

2. What is the penalty for carrying a pistol on my person/in my car while I have alcohol in my system (under or over 0.08)?

[BigBlueDodge]

a. No.
b. Actually that's incorrect. The definition of "intoxicated" is defined as over .08. Don't ask me to tell you where to find it, because I do not know where it is in the statutes. Maybe someone here can point it out for you.

Actually, your response is incorrect. There is no legal definition of "intoxication" in the context of the law (Penal Code, Chapter 46, Section 46.035). It is up to the judgement of the LEO as to whether you are intoxicated, and it doesn't require your blood alchohol content be above .08.

[BigBlueDodge]

Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(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.

Well, the key phrase I see to the Definition clause you pointed out is the "In this chapter" part, which is under chapter 49. The law prohibiting CHL holders from carrying is in Chapter 46, not chapter 49. So, it could be argued that the definition of "intoxication" in chapter 49 does not apply to chapter 46, because the defintion in Chapter 49 explicitly scopes the defintion to Chapter 49 only.

[BigBlueDodge]

Ha ha, I'm right there with ya, brotha. I'm a developer myself and reading the law makes my head spin because there is no consistency in the way it's written.

[srothstein]

Naa, reading the law is really easy if you get a little practice. It does get confusing with the contradictions, but there are some simple rules to help out.

Under the Code Construction Act (Government Code contains this) any law in Texas is to be taken with the words having their normal everyday meaning, unless there is a specific technical meaning given in the law. If there is a specific meaning given in the law, then it overrides the everyday meaning. If there is no specific definition given for the section, look in the chapter, then the title, then the code, then other codes.

For the specific section mentioned, the law uses the term intoxicated and does not define it. Intoxicated has a general meaning (drunk - we all know when we are or when we meet someone who is). But, intoxicated also has a specific legal meaning given in the code in various places. In this chapter (46), it is specifically defined a substantial impairment. In Chapter 49, it is defined as the loss of the normal faculties or .08 BAC, whichever occurs.

Now you have to compare the two definitions and the general understanding. There is a slight conflict between substantially impaired and loss of the use of the normal faculties, but it is slight. Since neither of those two terms is defined, it could be argued that they have the same effective meaning. If they have the same meaning, then it couldalso be argued that the alternate definition of .08 would be intoxicated. This latter is a slightly harder jump for the DA to make though. What helps the DA is that the general definition of the word intoxicated would not be as substanially impaired as the word drunk. Most people think falling down drunk when they think of that word, and a lower level of impairment is still intoxicated, even if not drunk. I think most people will now commonly accept the BAC of .08 as intoxicated and it has become part of the definition in their minds.

So, I would argue that if you are intoxicated, you either have a BAC of .08 or above OR you have lost the normal use of your mental or physical faculties. You might have a defense that this is not a substantial enough impairment though.

But either way, the law clearly allows you to have had one or more drinks and still carry a pistol, unless you are intoxicated.

And with the exception of a few minor locations or circumstances (calculated to alram for example), you can carry the long gun openly or concealed, even if you are intoxicated.

[KaiserB]

Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
(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.

Well, the key phrase I see to the Definition clause you pointed out is the "In this chapter" part, which is under chapter 49. The law prohibiting CHL holders from carrying is in Chapter 46, not chapter 49. So, it could be argued that the definition of "intoxication" in chapter 49 does not apply to chapter 46, because the definition in Chapter 49 explicitly scopes the definition to Chapter 49 only.

Your both missing one key point

(2) (A) at end of phrase there is an "OR" --meaning definition A or definition B is correct. You can be considered intoxicated with less than a 0.08 BAC.


The confusion my be caused by the use of similar terms in the law: When driving you can be charged with a DWI (Driving While Intoxicated) over 0.08 BAC. If you are under 0.08 BAC you may be charged with DUI (Driving Under the Influence)