I heard this one the other day. Man is pulled over for suspected drunk driving. Gets arrested because he has two handguns in his car and he is impaired. No CHL. Guns are not on his person, they are simply in the car. I think they said it was unlawful possession, but I'm not sure. Can someone here can explain it. Police admin wasn't confident that the DA would take the case.

Is DWI that hard to prove anymore or what? Not a smart move either way, but I'm questioning the specific charge.

He is likely being charged for DUI and UCW since he was violating a law other than a class C traffic misdemeanor.
 





Were they in reach (on or about his person?)

Just one more reason NOT to drink and drive.

One of the requirments to carry a handgun in your car without a  CHL is that you not be commiting a crime.  If the police charge you with DWI and you have a handgun on or about your person and you don't have a CHL, then you can be chargee with a violation of penal code section 46.02 (unlawful carrying a weapon).

So he would have to be charged with DWI or something similar to make 46.02 stick?

It appears  that way, no?

I would think it would only have to be provable that the violation occurred.

Of course, anywhere you go, if you get busted for a legit DUI they will charge you.

But there are other offenses that might have similar or stronger penalties they might let slide or deal away.

An example might be: driver is pulled over a violation of 545.066 Passing when prohibited, a Class B misdemeanor.

He is found to be carrying a handgun, but does not have a valid permit.

46.02(a-1)(5)(b) reads "engaged in criminal activity (other than a Class C misdemeanor traffic offense).

So the officer writes a warning for passing when prohibited and cites for UCW.

I didn't get all the details. My wife works at the PD and she was telling me about it. I was simply trying to educate myself, maybe educate someone else here at the same time.

Keep in mind you only lose protection under MPA/46.02, not 46.15.

I think without charges under another offense that it would be simple to have the 46.02 violation dismissed.   And if the other violation is dismissed or the person is found not guilty, then the basis for a 46.02 violation is gone as well.

Basically, without the criminal activity the 46.02 doesn't really work.  If you're acquitted of the criminal act DWI, illegal passing etc. then double jeopardy is triggered and you can't be prosecuted under 46.02.  If you're not acquitted but the charge is dropped the DA could try to get you on the 46.02 violation but would still have to prove the initial charge which is very unlikely.  

What I've seen happen with CHL holders and DWI's is the DWI is prosecuted separately.  If acquitted any charges related to the CHL are dropped.  That's most likely the instance you put forth would be handled.  Judges will tend to separate the two charges because they don't want the jury verdict to be biased by "oh my god he had a gun"

That is not what Double Jeopardy is. The 46.02 offense is contingent on another crime, if there is no other crime, 46.02 offense does not exist.

I did not realize passing in a no passing zone was a Class B misdemeanor.  I'm somewhat surprised someone could be prosecuted under 46.02 for that.

Attempting to prosecute someone under 46.02 if the defendant were acquitted of the crime that triggered 46.02 would trigger double jeopardy.  Another way of putting it is in order to prosecute someone under 46.02 you have to prove the underlying offense (DWI, passing illegally, public nudity etc).  If the person was previously acquitted of the underlying offense Double jeopardy is triggered and the prosecution of 46.02 is constitutionally barred.  

Probably splitting hairs here but this sticks with because a young prosecutor about 10 years ago attempted this in a DUI/carrying by a CHL while intoxicated.  The judge was asked to sign the order releasing the gun, currently in DPD's possession.  The prosecutor overheard the request and started to make some noise about it when the senior attorney I was working with took her aside and politely explained things to her.  She apparently intended to still try to prosecute the carrying by a CHL while intoxicated when the defendant had just been acquitted of DUI.  If the defendant wasn't driving while intoxicated, the defendant couldn't be carrying while intoxicated.   A prosecutor should get that, but apparently not.

What you describe IS NOT "double jeopardy". Double Jeopardy is the premise that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction.
Explanation of Double Jeopardy

Or tossing out a cigarette butt. Littering isn't a traffic violation.

 

From your wiki page: "that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction. "
For example:
Person is stopped on 12/25 at 8PM  and charged with DUI, and also charged with carrying by a CHL while intoxicated.  

Person is acquitted of DUI.  Now driving is legal right, driving while intoxicated is not.  To be acquitted the person has to be acquitted of being intoxicated.  

Now DA says I'm going to try you for carrying by a CHL while intoxicated on 12/25 at 8 PM.  
Texas Penal Code
Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER

(d) 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.

The defendant says you already tried to prove I was intoxicated and the jury acquitted.  The DA will never make it to jury selection on the carrying while intoxicated charge.  

Same goes for 46.02

(A)  engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

The DA cannot try the defendant for whatever criminal activity, lose to an acquittal then come back and try the defendant for violating 46.02.  To do so the DA would have to prove the criminal activity the defendant was just acquitted on.  

The DA does not get a second bite at the apple.

I think (a-1)(2) should be struck from the statute.  (A) is fraught with peril (littering can lead to a UCW conviction ), (B) is redundant, and (C) seems pretty vague.

While I agree with your basic conclusion; acquittal of the other offense would result in no prosecution for 46.02, I don't think it has anything to do with double jeopardy.  DJ means you cannot be tried twice for the same offense.  

Sorry, but you again miss the premise of what "Double Jeopardy" is. The DA cannot retry the defendant on the original charge of DUI. Attempting to charge the defendant with a violation of 46.02 isn't double jeopardy, its a separate charge. A judge will tell the DA, "Sorry, no dice"......but not because of "double jeopardy", its because the acquittal on the DUI means 46.02 is moot.

If you have your weapon secured in a locked container, does LE have probable cause for getting a warrant to access if you were pulled over for a traffic violation?

Your theoretical doesn't make sense.  I've never heard or seen any passing offense higher than a class C.  TRC 545.066 refers to passing a school bus and is only higher than a class C if seriously bodily injury occurs.  Even if your scenario was correct you can't write a warning for a class B offense and cite for UCW which is higher than a class C.

The chart I got 545.066 from lists it as a Class B.

I'm seeing in other places in the reference where it is a Class C.  I suspect I cited a typo.  



eta:  Re-reading that, I cited passing when prohibited while driving a junior college bus.

Actually it's not a separate offense but included in the 46.02 by reference.  The "criminal offense" language is a catch all.

The reality is you would rarely have to use the jeopardy argument it just doesn't happen that often but it is a powerful one and fairly easily applied.  That's why that once case I mentioned earlier has stuck with me and the fact the prosecutor was so oblivious or over zealous as to think she could still prosecute the carrying while intoxicated charge.  

It also doesn't necessarily apply to the exact crime.  For example prosecutors are barred by double jeopardy for trying a guy for a crime that required A,B C and D to be met to establish guilt if he was already tried and acquitted of a crime that required A, B and C to met to establish guilt even though the second crime did not include D.  Assuming the crimes charged all relate to the same set of circumstances.

A better explantion:
... the government may prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact that the other offenses do not require. Blockburger requires courts to examine the elements of each offense as they are delineated by statute, without regard to the actual evidence that will be introduced at trial. The prosecution has the burden of demonstrating that within a pair or group of offenses, each has at least one mutually exclusive element. If any one offense is wholly subsumed by another, such as a lesser included offense, the two offenses are deemed to be the same, and punishment is allowed for only one.

Texas transportation code - Sec. 545.066.  PASSING A SCHOOL BUS;  OFFENSE.  (a)  An operator on a highway, when approaching from either direction a school bus stopped on the highway to receive or discharge a student:
(1)  shall stop before reaching the school bus when the bus is operating a visual signal as required by Section 547.701;  and
(2)  may not proceed until:
(A)  the school bus resumes motion;
(B)  the operator is signaled by the bus driver to proceed;  or
(C)  the visual signal is no longer actuated.
(b)  An operator on a highway having separate roadways is not required to stop:
(1)  for a school bus that is on a different roadway;  or
(2)  if on a controlled-access highway, for a school bus that is stopped:
(A)  in a loading zone that is a part of or adjacent to the highway;  and
(B)  where pedestrians are not permitted to cross the roadway.
(c)  An offense under this section is a misdemeanor punishable by a fine of not less than $500 or more than $1,250, except that the offense is:
(1)  a misdemeanor punishable by a fine of not less than $1,000 or more than $2,000 if the person is convicted of a second or subsequent offense under this section committed within five years of the date on which the most recent preceding offense was committed;
(2)  a Class A misdemeanor if the person causes serious bodily injury to another; or
(3)  a state jail felony if the person has been previously convicted under Subdivision (2).
(d)  The court may order that the driver's license of a person convicted of a second or subsequent offense under this section be suspended for not longer than six months beginning on the date of conviction.  In this subsection, "driver's license" has the meaning assigned by Chapter 521.
(e)  If a person does not pay the previously assessed fine or costs on a conviction under this section, or is determined by the court to have insufficient resources or income to pay a fine or costs on a conviction under this section, the court may order the person to perform community service.  The court shall set the number of hours of service under this subsection.
(f)  For the purposes of this section:
(1)  a highway is considered to have separate roadways only if the highway has roadways separated by an intervening space on which operation of vehicles is not permitted, a physical barrier, or a clearly indicated dividing section constructed to impede vehicular traffic;  and
(2)  a highway is not considered to have separate roadways if the highway has roadways separated only by a left turn lane.

Acts 1995, 74th Leg., ch. 165, Sec. 1, eff. Sept. 1, 1995.  Amended by Acts 1997, 75th Leg., ch. 1438, Sec. 9, eff. Sept. 1, 1997;  Acts 2003, 78th Leg., ch. 1325, Sec. 19.06(a), eff. Sept. 1, 2003.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 661 (H.B. 1174), Sec. 1, eff. September 1, 2013.

"Highway or street" means the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel according to TTC  541.302(5)

The penalty for passing a stopped school bus is a fine over $500 but less than $2,000, so it looks like a Class B to me ...

Texas penal code
Sec. 12.22.  CLASS B MISDEMEANOR.  An individual adjudged guilty of a Class B misdemeanor shall be punished by:
(1)  a fine not to exceed $2,000;
(2)  confinement in jail for a term not to exceed 180 days;  or
(3)  both such fine and confinement.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 1, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.


Sec. 12.23.  CLASS C MISDEMEANOR.  An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.  Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 1, eff. Sept. 1, 1991;  Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

It is not a class B because no jail time is possible as a conviction.

If the fine can exceed $500, how can it be Class C, as it no longer meets the statutory language ?

Drunk with a handgun.  A very common arrest.   Not a big mystery here.  Drunk in a car with a gun = DWI and UCW.  

What if it is secured in a locked container and/or trunk?

Was a discussion on this a while back.  As I recall, UCW under 46.02 is non applicable under 46.15. Instead the CHL holder is in violation of 46.035, unlawful carry of weapon by a concealed license holder.



Section 46.15 (b) 6





ETA:  Reread the OP - for whatever reason I thought we were talking CHL holder stuff.  But I was mistaken.

That is the wrecker driver's problem.   He signed for the car and contents.

I've been told some LEOs would inventory.  Could they then make a charge on what they discover during this search?

They would inventory it and the inventory would show "a locked container in the trunk".  Without a warrant they can't open the container.  Of course there exceptions but generally speaking this is the case.

For one thing, an inventory is not a search. Second, yes they could if they had PC to believe that there was a firearm in the locked case. The officer would be wise to get a warrant to open the case. That said, if we are just talking about a DWI, it is probably getting logged on the inventory sheet as a locked case. And stays with the car.

46.02 requires "on or about your person"

Sec. 46.02.  UNLAWFUL CARRYING WEAPONS.  (a)  A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

This is well-established case law, a trunk is not on or about your person. Locked container may or ,may not be.

It is not double jeopardy. Double jeopardy is defined in the Texas Constitution as "No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction."

Unlawfully Carrying a Weapon (PC 46.02) and, for example, DWI (PC 49.04) are not the same offense (or even similar).

The UCW statute doesn't even require that someone be convicted or even charged with any other crime, only that they be "engaged in criminal activity..." Obviously, the burden would be on the State to prove to a jury that each element of the UCW offense had been met, but that would be up to a jury at trial. If the State gave evidence to a jury that the defendant was engaged in criminal activity then the jury could convict on the UCW charge.  With multiple charges the State gets to pick which case gets tried first, so they could try the UCW case before any other offense, if there even was one. An argument can be made that if the legislators that wrote and passed the UCW statute intended that there be a conviction for the other criminal activity they would have worded it that way in the statute instead of simply being engaged in criminal activity.  

I ran this scenario by one of the judges and one of the prosecutors that I work with and both had the same opinion.  The UCW statute as it is currently written does not require a defendant to actually be charged with any other crime to meet the "engaged in criminal activity" element of the UCW offense.  The State would only need to convince the jury there the defendant was actually engaged in criminal activity.   Both also agreed that if the defendant was actually charged with another offense, tried for that one first and found not guilty, then successfully prosecuting for the UCW would be almost impossible.  But, the State picks the order the cases are tried in and can choose what cases it prosecutes.

Don't bother.
I've posted links to the definition of Double Jeopardy and he just doesn't get it.

Which is along the lines of what I said in the first place

I get it, apparently you missed the part where I was standing in front of a judge when this happened.  


But by all means please feel free to try to explain to me how you can try someone for DWI, have the defendant be acquitted then come back the next day and attempt to try  the defendant for Carrying while intoxicated during the same incident without triggering double jeopardy?

The "while intoxicated" part is what going to trip you up.








The UCW statute is rather vague and probably easier to prove.  It strikes me as one of those if you can't get them on anything else, try this approach laws.  In my experience a judge wouldn't let the state split them up and try them in an order that you're talking about but every judge is different.

There is also the fact that if the prosecutor loses the UCW case any other charges surrounding that incident become problematic.  A prosecutor really wouldn't risk a murder trial or DWI trial on a UCW trial.

No one has said if he is acquitted of DWI he can be tried for UCW. You may want to re-read.

You really have no clue what DJ is, and several folks in addition to myself have tried patiently to explain it to you.

So since this happened to you ... let me guess:

You appeared before the judge on the UCW charge.

Your lawyer made a motion to dismiss the case due to the fact that you were acquitted of DWI.

Judge agreed and your case was dismissed.

Regardless of what the prosecution may have or have not done, that is how your second appearance went, correct?

Doc

It may take a few more posts, it might take years..........but eventually he'll experience a moment of clarity and perform a face palm.

Take your own advice and reread what I posted chief.  I am well aware of what DJ is.  

From my post:

"Basically, without the criminal activity the 46.02 doesn't really work.  If you're acquitted of the criminal act DWI, illegal passing etc. then double jeopardy is triggered and you can't be prosecuted under 46.02.  If you're not acquitted but the charge is dropped the DA could try to get you on the 46.02 violation but would still have to prove the initial charge which is very unlikely."  

But let's assume you are absolutely correct.  Your premise is that a defendant acquitted of some specific crime could then be charged with UCW with the criminal activity being the crime he was acquitted of and that doing so does not trigger double jeopardy?  There are very few absolutes in law, but I seriously doubt you would make it far with that argument.  If you don't believe me maybe the USSC, will convince you:


"Blockburger is the exclusive means by which courts determine whether cumulative punishments pass muster under the Double Jeopardy Clause. But courts have used several other methods to determine whether successive prosecutions apply the same offense. Collateral Estoppel, which prevents the same parties from relitigating ultimate factual issues previously determined by a valid and final judgment, is one such method. In Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), the U.S. Supreme Court collaterally estopped the government from prosecuting an individual for robbing one of six men during a poker game. A jury had already acquitted the defendant of robbing one of the other players. Although the second prosecution would have been permitted under Blockburger because two different victims were involved, it was disallowed because the defendant had already been declared not guilty of essentially the same crime." http://legal-dictionary.thefreedictionary.com/double+jeopardy

Now what the other person posted about the judge saying the specific crime would not be required to be proved to get a conviction under 46.02 is an interesting take on 46.02, I hadn't considered.  The criminal code defines criminal activity as conduct that is subject to prosecution.  I would argue if you're going to assert that the defendant was UCW, you would need to assert what the criminal activity was whether it's DWI, illegally passing attempted murder ....whatever. Criminal activity is defined as conduct subject to prosecution, so what is that conduct.  There are other definitions of criminal activity in the penal code such as under money laundering or organized crime but those definitions are specific to the section of the penal code they're located in.    

Now the question is whether or not the prosecutor needs to prove beyond a reasonable doubt that the defendant was engaged in the asserted conduct that is subject to prosecution?  In addition, the argument against doing so, in my example, is that the asserted criminal activity has already been litigated and a judgment rendered.  

Who even cares about the guns. Throw him in the very back of the jail for driving drunk.

For the umpteenth time, NO. Nobody here has claimed he can be charged with UCW after DWI acquittal. Got it? Your entire assumption of our position has been wrong since your first post.

  No, it is not. You have prima facie evidence that you were not intoxicated.  That is all.  

  Not as unlikely as you think.

  The case you cite is not applicible here.    You just don't understand how this works.