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boomerang wrote:

jmra wrote:Since there are no definitions for intoxication within PC 46

46.06 clearly states "Intoxicated" means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.

That's actually more lenient for us than the PC 49 definition, because BAC of 0.08 is not presumptive in the PC 46.06 definition.

Picture it this way. Only A meets the PC 46 definition but either A or B is enough to meet the PC 49 definition.

do you really want to argue that before a judge in court. The officer says he smelled alcohol on your breath. You were shaking and extremely nervous (remember you just shot a guy). Yo say but judge I just had one drink.
Not odds I would want to bet on.

I think that having a drink after a shooting would be seen as quite justifiable...you know, for medicinal purposes only, of course. I say that in jest.

jmra wrote:

boomerang wrote:

jmra wrote:Since there are no definitions for intoxication within PC 46

46.06 clearly states "Intoxicated" means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.

That's actually more lenient for us than the PC 49 definition, because BAC of 0.08 is not presumptive in the PC 46.06 definition.

Picture it this way. Only A meets the PC 46 definition but either A or B is enough to meet the PC 49 definition.

do you really want to argue that before a judge in court. The officer says he smelled alcohol on your breath. You were shaking and extremely nervous (remember you just shot a guy). Yo say but judge I just had one drink.
Not odds I would want to bet on.

jmra wrote:Here is the argument I have heard:

A person with a CHL charged with carrying while intoxicated would be charged under PC 46.035 d. The person is not charged with public intoxication under PC 49.

Since there are no definitions for intoxication within PC 46 and PC 49 is not referenced within PC 46 and PC 49 does not deal directly with CHL as it does with public intoxication, the operation of motor vehicles, water craft, and aircraft, the definition of intoxication within PC 49 (specifically the blood alcohol limit of .08) does not apply to PC 46 and therefore is open to interpretation. A loophole in the law if you will.

You're absolutely correct that we all expend a lot of conversation over what might amount to a single drink, and I agree with you, LT, Old Gringo, and many others that it just ain't worth it. I never have a drink when I'm carrying.

However, from the strict interpretation, I still think that there is a definitive, referential definition within PC §46.035:

PC §46.035(d) wrote: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.

Government Code, Subchapter H, Chapter 411(6) wrote:"Intoxicated" has the meaning assigned by Section 49.01, Penal Code.

In other words, PC §46.035 is detailing specific, unlawful limitations to a singular authority that is conveyed by GC §411. I would take that to mean any definition not directly set forth in PC §46.035 would take on the meaning as defined in GC §411.

The point is somewhat moot because the on-the-ground interpretation of "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" still allows plenty of lattitude for interpretation by the arresting officer.

The problem with the PC §46.06 analogy is that the section specifically addresses the "unlawful transfer of certain weapons." In it, there is no reference to the authority to carry conveyed by GC §411 so, to my eyes anyway, that looks like a disassociated definition.

SoOoOoOo
If you have a Drink and dont want Booze on your breath, carry Gum or Tick Tacks, along with your extra ammo.

marksiwel wrote:SoOoOoOo
If you have a Drink and dont want Booze on your breath, carry Gum or Tick Tacks, along with your extra ammo.

marksiwel wrote:SoOoOoOo
If you have a Drink and dont want Booze on your breath, carry Gum or Tick Tacks, along with your extra ammo.

Let me know how that works out for ya.

jmra wrote:The officer says he smelled alcohol on your breath.

Bad breath is not "substantial impairment of mental or physical capacity" and if you hit the BG that shows your physical capacity was not substantially impaired.

It's fine to say people shouldn't carry if they have a beer with dinner, or shouldn't carry at church, but as far as I can tell the law does not prohibit either. (But hey IANAL)

bayouhazard wrote:

jmra wrote:The officer says he smelled alcohol on your breath.

Bad breath is not "substantial impairment of mental or physical capacity" and if you hit the BG that shows your physical capacity was not substantially impaired.

It's fine to say people shouldn't carry if they have a beer with dinner, or shouldn't carry at church, but as far as I can tell the law does not prohibit either. (But hey IANAL)

So do you feel like paying thousands in legal fees with a good chance of losing because you want to test this theory? if so then it better be a really really really good beer.

frazzled wrote:

bayouhazard wrote:

jmra wrote:The officer says he smelled alcohol on your breath.

Bad breath is not "substantial impairment of mental or physical capacity" and if you hit the BG that shows your physical capacity was not substantially impaired.

It's fine to say people shouldn't carry if they have a beer with dinner, or shouldn't carry at church, but as far as I can tell the law does not prohibit either. (But hey IANAL)

So do you feel like paying thousands in legal fees with a good chance of losing because you want to test this theory? if so then it better be a really really really good beer.

Isn't this where someone should say: "Id rather be judged by 12 than carried by 6"? I totally agree that alcohol and guns don't mix. But, if you plan, or don't plan, to have a single drink with a meal, but will still have to walk in a dangerous place to get back to your car (i.e. downtown on Friday or Saturday night) and happen to encounter a drug crazed BG, I'd have to say I would still feel better if I had my CW. Like most other posters have stated, what you did or didn't have to drink will most likely become an issue because you used your CW in a defensive encounter. The best answer is to just not drink, but it does seem a bit risky to put yourself in a dangerous situation of being unable to defend yourself and your spouse because you chose to have a glass of wine with your prime rib on your 25th wedding anniversary.

So would this be one of those cases where would want them to put a gun law on the book basically clearing up this issue? Or does someone want to be the "Your Name Vs the State of Texas" case for this?

marksiwel wrote:So would this be one of those cases where would want them to put a gun law on the book basically clearing up this issue? Or does someone want to be the "Your Name Vs the State of Texas" case for this?

No the law sounds as clear as any law. Facts of the case will determine if you were legally intoxicated. This can be eminently avoided by one or more of the following: 1) not being arrested; 2) not drinking; or 3) not carrying.

BillT wrote:

frazzled wrote:

bayouhazard wrote:

jmra wrote:The officer says he smelled alcohol on your breath.

Bad breath is not "substantial impairment of mental or physical capacity" and if you hit the BG that shows your physical capacity was not substantially impaired.

It's fine to say people shouldn't carry if they have a beer with dinner, or shouldn't carry at church, but as far as I can tell the law does not prohibit either. (But hey IANAL)

So do you feel like paying thousands in legal fees with a good chance of losing because you want to test this theory? if so then it better be a really really really good beer.

Isn't this where someone should say: "Id rather be judged by 12 than carried by 6"? I totally agree that alcohol and guns don't mix. But, if you plan, or don't plan, to have a single drink with a meal, but will still have to walk in a dangerous place to get back to your car (i.e. downtown on Friday or Saturday night) and happen to encounter a drug crazed BG, I'd have to say I would still feel better if I had my CW. Like most other posters have stated, what you did or didn't have to drink will most likely become an issue because you used your CW in a defensive encounter. The best answer is to just not drink, but it does seem a bit risky to put yourself in a dangerous situation of being unable to defend yourself and your spouse because you chose to have a glass of wine with your prime rib on your 25th wedding anniversary.

Thats your call and then gets into the realm of whether or not you were legally intoxicated as a question of fact.
A. Don't be arrested or
B. don't drink or
C. don't carry.

If you can't control or abide by A or B then you can absolutely control B.

I have concluded after years of watching this debate, that some people have the same reaction to alcohol that the Bradys have to guns: "Ooooooooh! Scary! Evil! Don't touch it, or it will start killing people!"

People are individuals.

Some people can't handle alcohol and they get into trouble when they drink. Those people shouldn't carry when they drink and shouldn't drink when they carry.


Some people can drink responsibly. For those people it's not a problem to have one or two drinks, whether or not they're carrying.


Some people are vinophobes like chabouk says.

The American Medical Association has defined the blood alcohol concentration level of impairment for all people to be 0.04 grams/100 milliliters of blood (equivalent to .04 grams/210 liters of breath). When do you hit .04? For all of us non-alcoholics it can be anywhere between one half of a drink to two drinks.

Still think that one drink has no affect on your abilities /judgement? The experts and scientific results disagree.