Legal question

[innominate]

Here’s the relevant transportation code sections

TRANSPORTATION CODE CHAPTER 724. IMPLIED CONSENT

Also, refusing FST can result in a very quick warrant for a mandatory blood draw.

I didn't look thru the code cuz I've had a couple. . I will say. I refused a FST in Texas last century. I was a resident in another state at the time. I spent a night in city provided accommodations. Again, I just find it odd he wasn't arrested.

 

[Axxe55]

Anyone remember this story about the nurse in Utah?

Ex-Salt Lake City officer who arrested Utah nurse Alex Wubbels over blood draw says in lawsuit he was made the ‘fall guy’

The Salt Lake City police officer who was fired after handcuffing a nurse who tried to stop him from performing a blood draw on a patient without a warrant is suing his former employer and the city.

www.sltrib.com

 

[toddnjoyce]

I didn't look thru the code cuz I've had a couple. . I will say. I refused a FST in Texas last century. I was a resident in another state at the time. I spent a night in city provided accommodations. Again, I just find it odd he wasn't arrested.

No worries; we don’t have the details and I’m sure you’ve only got his side of the story.

 

[Renegade]

Sorry for the vague title guys. CHL holder gets in an accident. Gun is in bag in back seat of vehicle. Suspected dui, blood drawn but no arrest. Released but told "we'll wait for the blood results to talk about the weapons charge". Or something to that effect. He is going to consult an attorney of course but I was just wondering what charges he might face?

Not arrested? Did they let him get back in his car?

Weapons charge. Probably none. Gun in back seat of car in bag is going to be tough to show it was on or about his person unless he was driving a MiniCooper.

 

[Renegade]

You can be arrested for driving under the influence even if you blow 0.00.

MIL got arrested and blew 0.00 (she had no alcohol in her at any time).

Chief came to her house next day apologizing.

 

[innominate]

Not arrested? Did they let him get back in his car?

Weapons charge. Probably none. Gun in back seat of car in bag is going to be tough to show it was on or about his person unless he was driving a MiniCooper.

Truck not driveable. Released from hospital.

 

[Renegade]

Truck not driveable. Released from hospital.

Cant say I have ever heard of that happening often. I mean, by letting him leave the hospital, the officer is effectively saying he is not intoxicated.

 

[innominate]

Cant say I have ever heard of that happening often. I mean, by letting him leave the hospital, the officer is effectively saying he is not intoxicated.

Yeah. That's pretty much the point of the thread. It's odd to me he was just released from the hospital.

 

[TexasRedneck]

He might have shown some level of alcohol, and they want to confer w/the DA before anything goes further. Could also be that they figured he'd had enough problems for one night, but didn't want to release a firearm to someone with any level of alcohol in 'em.

 

[Wallace Dunn]

Sorry for the vague title guys. CHL holder gets in an accident. Gun is in bag in back seat of vehicle. Suspected dui, blood drawn but no arrest. Released but told "we'll wait for the blood results to talk about the weapons charge". Or something to that effect. He is going to consult an attorney of course but I was just wondering what charges he might face?

You should look up the chapter and read the entire thing. I am going to paraphrase
Per Sec. 46.02. "UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person: ..."
...
"(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;"

Typically if you are charged with a DUI they can also charge you under 46.02 with Unlawful Carrying Weapons. He may also be charged with Driving While Intoxicated (Impaired) where you do not have to be over the legal limit, but you may still be charged.

 

[5231HG]

You should look up the chapter and read the entire thing. I am going to paraphrase
Per Sec. 46.02. "UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person: ..."
...
"(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;"

Typically if you are charged with a DUI they can also charge you under 46.02 with Unlawful Carrying Weapons. He may also be charged with Driving While Intoxicated (Impaired) where you do not have to be over the legal limit, but you may still be charged.

Good reference. I came here to say the same thing.

 

[Dred]

So ... the year was 2013. Stashed my Dan Wesson vbob in my saddlebag and started a Poker Run. Finished run and partied pretty hard at Galveston County Fair Grounds.

Knew riding home was wrong so I borrowed a spot in an RV to sleep it off. Woke just b4 sunrise and headed home to take care of my dog.

Woke up 4 days later; pulled my own breathing tube; saw my mother and learned I'd missed a helicopter ride and a few surgeries.

Trooper visited at hospital and returned my wallet and holster. I thought little of it 'cause I was in a hospital that didn't allow me to carry.

A month later I got a citation in the mail. Drove out to pay it. Brazoria County asked me to wait. Deputies showed up and gave me a ride to jail. That day court stuff that took 2 years started.

I was offered wreckless and I took it 'cause I still have no memory after pushing my motorcycle away from sleeping folks to start it. Judge demanded I let Btazoria Keep the vbob and I did - thinking it was done 'cause wreckless is an unclassified misdemeanor.

I'm hoping to get my Texas LTC returned shortly.

When/if I drink these days you can bet I'm at my final destination.

Sent from my SM-N950U using Tapatalk

 

[Renegade]

You should look up the chapter and read the entire thing. I am going to paraphrase
Per Sec. 46.02. "UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person: ..."

Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun

Section is contingent upon "intentionally, knowingly, or recklessly carries on or about his or her person". Gun on your belt, that is on your person. But gun in back seat in bag, no so easy to prove. Case Law is complex on this, best reference I am aware of is "Does he have to materially change his body position to grasp the firearm?"

 

[5231HG]

Sec. 46.02 (a-1)(2)(A) "engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;"

DWI is not a Class C Misdemeanor. Drunk driving while a firearm is in the vehicle, not necessarily on one's person, fulfills this section.

 

[Renegade]

Sec. 46.02 (a-1)(2)(A) "engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;"

DWI is not a Class C Misdemeanor. Drunk driving while a firearm is in the vehicle, not necessarily on one's person, fulfills this section.

(a-1)
A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:

 

[5231HG]

In OP's description, a person was driving with a handgun in the vehicle. That fulfills the criteria of "the person intentionally...[carrying] on or about his or her person a handgun in a motor vehicle...that is owned by the person..."
The back seat is definitely "about the person." Whether it was intentional or reckless is up for debate, I guess. Especially if he was too drunk to remember that he left it in there. [note: I'm coming up with a hypothetical here, not casting aspersions at OP's acquaintance]
Also hypothetically, that the acquaintance was driving drunk, this is either a Class A or B misdemeanor, as per Texas Penal Code Sec. 49.04. That fulfills the requirement of "engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic"

 

[Renegade]

In OP's description, a person was driving with a handgun in the vehicle. That fulfills the criteria of "the person intentionally...[carrying] on or about his or her person a handgun in a motor vehicle...that is owned by the person..."

Words have meaning. "on or about his or her person a handgun" has specific meaning in Texas. It means the gun is "on or about your person". Case Law has further refined that to mean, it is on your person if you do NOT have to materially change your body position to reach it. So many locations in passenger compartment are NOT "on or about his or her person"

 

[5231HG]

Do you have a source on that case law?

 

[Ozzman]

If blood draw shows ANY alcohol %, it is a big no-no.

 

[Renegade]

Do you have a source on that case law?

This is how Halbrook cited it:

See, e.g., Lewis v. State, 7 Tex. App. 567 (1880); Jennings v. State, 5 Tex. App. 298, 301 (1878) ("a long line of decisions"); Lewis