Drinking while other person carries

[MBGuy]

I have several instances coming up (a wedding is one) in which I'll be drinking. Spouse doesn't drink and she doesn't have a CHL. With the better "travelling" law/definition, if on the way home the handgun is in the center console, I'm in the passenger seat (obviously), does posession of the weapon go to her under the travelling definition, in spite of me having a CHL?

[seamusTX]

Any driver or owner of a vehicle can have a concealed handgun in the vehicle. The law is silent on other people being in the vehicle.

- Jim

[Kalrog]

There is no law against drinking while carrying, just against being drunk / impaired. I would encourage your wife to get a CHL so this isn't an issue, but I would think that you are okay legally with the situation as described. I would still caution against YOU having ready access to it if you are going to be drinking to excess.

[MBGuy]

I'll be drinking a fair amount. I have pretty good resistance, so I won't be sloppy drunk/slurring/leaning/etc, but considering how quickly one can get to .08 and that we'll be there a while, I'll be "legally" drunk, hence she drives.

Since it's a pretty long trip for us, especially the wedding, and late at night, I'd feel safer having the weapon with us. I also don't want to risk being caught close to a weapon when .08 though, so I was hoping to pass "posession" to her under the travelling law.

[Kalrog]

I'll be drinking a fair amount. ... I'll be "legally" drunk

I'm going to try not to preach, but this doesn't sound like a good idea.

[txinvestigator]

#1, the change in the law that allows law abiding citizens to carry in their car has nothing to do with the traveling law. AT ALL

#2. Lets look at you being drunk and you being a passenger in your vehicle with your wife driving and the handgun in the console;

Your wife is not violating the law by the handgun being in the console.

Whether you are or not is an interesting question. You would not be guilty under the UCW law, as it is your vehicle too. If an officer or the court wanted to charge you with carrying while intoxicated, I guess they could. They would charge that you were carrying under your CHL, the handgun was about your person, and you were intoxicated. It would make interesting case law. Glad you are willing to be a test case. I like case law.

On the other hand, if your wife was stopped, and the police decided to arrest your for public intoxication, then you could be charged with UCW, a Class A misdemeanor.

Note that in any case where you would be arrested, DPS will suspend your CHL pending the final disposition of the case. If convicted, your CHL would be revoked.

Sounds like a good time to leave the weapon at home, or grow up and drink responsibly.

PS: there is no such thing as "legally drunk".

[txinvestigator]

I'll be drinking a fair amount. I have pretty good resistance, so I won't be sloppy drunk/slurring/leaning/etc, but considering how quickly one can get to .08 and that we'll be there a while, I'll be "legally" drunk, hence she drives.

.08% BAC means nothing if you are not driving. It really means little if you ARE driving, but thats another thread.

There is no minimum BAC for public intox or carrying while intoxicated. Or for DWI for that matter.

[shaggydog]

I have several instances coming up (a wedding is one) in which I'll be drinking.

Wife and I went to a wedding not long ago in Houston (ugh).

Carried throughout the trip there, the ceremony, the reception, the trip back.

Best ice tea at the reception I've ever had and still plenty of fun.

[Charles L. Cotton]

I have several instances coming up (a wedding is one) in which I'll be drinking. Spouse doesn't drink and she doesn't have a CHL. With the better "travelling" law/definition, if on the way home the handgun is in the center console, I'm in the passenger seat (obviously), does posession of the weapon go to her under the travelling definition, in spite of me having a CHL?

I need to have a couple of law professors I know join TexasCHLfroum. You folks come up with some very good law school exam questions! I don't know the answer to your question, since the newly revised TPC §46.02 has not yet been tested in court. I think you would be guilty of violating TPC §46.035(d) that prohibits a CHL from carrying while intoxicated.

This is how I believe the scenario would be analyzed. Both you and your wife would be carrying a handgun "on or about your person." If you were not intoxicated, you would not carrying pursuant to the authority of your CHL, since TPC §46.02 does not make it unlawful to have a handgun in your car, thus making your CHL unnecessary. However, the revised TPC §46.02 (A-1) makes carrying a handgun in your car a crime, if you are violating any law, other than Class C traffic violations. Since you would be guilty of public intoxication you would be committing a crime other than Class C traffic violation, so you would then have to rely upon your CHL to exempt you from TPC §46.02 so as to avoid the new §46.02(A-1) violation. In so doing you would violate TPC §46.035(d) by carrying under the authority of your CHL while intoxicated.

Great scenario, but I think you lose. Put the gun in the trunk on the way home.

Chas.

[GrillKing]

If you were not intoxicated, you would not carrying pursuant to the authority of your CHL, since TPC §46.02 does not make it unlawful to have a handgun in your car, thus making your CHL unnecessary.

Regardless of whether or not you are carry under the authority of your CHL, you are still required to display your DL and CHL to a peace officer if asked for ID. I believe this would still apply for carry under the new carry in your vehicle law. There is no exception in GC411.205 for what authority you are carrying under, you must display.

[Kalrog]

I need to have a couple of law professors I know join TexasCHLfroum.

Please do!

You folks come up with some very good law school exam questions!

We try

[Kalrog]

Regardless of whether or not you are carry under the authority of your CHL, you are still required to display your DL and CHL to a peace officer if asked for ID.

Uh... I think that is ONLY if you are actually carrying. Now, that is the legal portion - out of courtesy I would always show. But then again I would always be carrying (unless legally prohibited from doing so) so the issue is moot for me.

[GrillKing]

Regardless of whether or not you are carry under the authority of your CHL, you are still required to display your DL and CHL to a peace officer if asked for ID.

Uh... I think that is ONLY if you are actually carrying. Now, that is the legal portion - out of courtesy I would always show. But then again I would always be carrying (unless legally prohibited from doing so) so the issue is moot for me.

I meant regardless of whether you are carrying under CHL or carrying under the new 'carry in your car' law, you must present DL and CHL if asked. Sorry, my previous post wasn't clear.

[GrillKing]

Regardless of whether or not you are carry under the authority of your CHL, you are still required to display your DL and CHL to a peace officer if asked for ID.

Uh... I think that is ONLY if you are actually carrying. Now, that is the legal portion - out of courtesy I would always show. But then again I would always be carrying (unless legally prohibited from doing so) so the issue is moot for me.

I agree, if I'm not carrying, I will still give both DL and CHL as a courtesy (and I believe to my possible benefit).

[txinvestigator]

If you were not intoxicated, you would not carrying pursuant to the authority of your CHL, since TPC §46.02 does not make it unlawful to have a handgun in your car, thus making your CHL unnecessary.

Regardless of whether or not you are carry under the authority of your CHL, you are still required to display your DL and CHL to a peace officer if asked for ID. I believe this would still apply for carry under the new carry in your vehicle law. There is no exception in GC411.205 for what authority you are carrying under, you must display.

He was not making or arguing that point. He was referring to the authority under which he would be carrying so as to determine which laws he might be violating.