Thursday, February 17, 2011

Legal Advice

My lawyer sends the following e-missive which I reproduce in its entirety as an example of the service I receive as a client as well as general good advice whatever jurisdiction you may reside in instead of Texas (why? :)):
Dear Members & Friends:

This edition of our news letter concerns the law on drinking and having your concealed carry hand gun on your person. This topic comes from an email question we received from a Texas Law Shield member and client named Paul R. of San Antonio who recently moved to Texas. Paul wanted clarification of the law on carrying your gun and intoxication. First off, Paul welcome to Texas!

Visit our website:
Contact us at: 1-877-448-6839

What is Texas law on possession of your concealed carry gun and intoxication?

Texas Penal Code section 46.035(d) states that a person cannot be intoxicated while in the possession of their concealed hand gun. It does not say that you cannot consume alcohol while carrying your gun, just that you cannot consume enough to become intoxicated and legally carry your gun. However, this section of the law does not define what intoxication means, so we have to look elsewhere in the penal code for help. "Intoxication" is defined in 3 different places in the Texas Penal Code: TPC.

TPC § 49.01 -intoxicated means not having the normal use of one's mental or physical faculties or having a blood alcohol concentration over .08 grams.

TPC § 46.06 -intoxication means the substantial impairment of mental or physical capacity resulting from the introduction of any substance into the body.

TPC § 8.04 - intoxication means a disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

As you can see from these definitions, intoxication occurs when an individual consumes so much of a substance (commonly alcohol, but could be any substance (legal or otherwise), prescription medication, or over the counter medications, etc.) that it has an adverse effect on that person's mental or physical abilities. It is hard to imagine that one beer or glass of wine with dinner would cause someone to completely lose their mental or physical faculties. But people react to alcohol or medication differently.

Under the Texas Government Code Chapter 411 (governing the issuance of CHLs), it says that a CHL cannot be issued to a "chemically dependant person," which is one who repeatedly becomes "intoxicated" as defined by TPC § 49.01. That is the only time in the law governing CHLs that a specific definition of intoxication has been used. There exists almost no law on this subject for interpretation in this context.

While not covered under the Texas Law Shield firearms program, we have represented numerous individuals with CHLs charged with carrying a weapon while intoxicated, and the district attorney's office has always used the definition of intoxication it uses in DWI cases (TPC § 49.01).

My personal advice is if you carry a hand gun don't drink. The potential problems are not worth the risks.

Drink responsibly. And, if you choose to consume alcohol while carrying your concealed hand gun, be careful to never become intoxicated. Be aware of the risks and consequences.

I hope this information has helped address your concern.

Edwin Walker
Walker, Rice & Wisdom, P.C.

If you live in Texas, you have no excuse not to be just as prepared for the post-gunfight confrontations as those you train to overcome pre-gunfight. For the price of 4 boxes of ammo (and not very pricey ammo at that, say 100 rds of Winchester white box for example) you too can arrange legal defense for a year at a time. Most of us are willing to spend that and more for a fancy holster, how can anyone not value their freedom and financial security at least as much?


Matt G said...

Texas Penal Code:

Government Code Chapter 411

Matt G said...

(Be sure and right click and open in a new window; this comment window is small.)

(Also, if you click "Texas" up above, you can get to a searchable site that shows all the Texas codes, laws, etc.)

Anonymous said...

Simple If you carry , do not consume alcohol.

Will Brown said...

"Simple If you carry , do not consume alcohol."

Probably good general advice, but not actually what the law in Texas says, which is an important distinction I think.

This issue isn't only about our individual decisions; the actions taken by those placed in authority over us need be considered as well. Regardless of our BAC at any given moment while carrying a concealed firearm under Texas permitting regulations, the lack of established legal ruling on the issue generally means that legal authorities are essentially operating without court-stipulated boundaries. I for one am too experienced of human self-advancement urges to be very trusting of such a situation and feel better prepared to respond to events by having attained this level of knowledge.