Texas law protects people's Second Amendment rights to possess guns. You have a right to carry a firearm and other weapons on your person or vehicle. Most people, however, do not realize that carrying a weapon could be a crime if you possess it while violating the law in another way. In particular, you could face charges for unlawful carrying of a weapon if you possess a weapon while committing the crime of driving under the influence. You should seek the services of a skilled attorney if you face charges for the unlawful possession or carrying of a weapon in connection with a DWI arrest.

Unlawful Carrying of a Weapon In Texas

The unlawful possession of a weapon charge is covered under Penal Code 46.02 (a-1). Most of these cases involve handguns, especially possessing the weapon when you are driving under the influence. Under most circumstances, this offense is categorized as a Class A misdemeanor. However, in some cases, it can be charged as a third-degree felony. You could be guilty of unlawful possession of a weapon if you recklessly carry a handgun on your person or your vehicle.

In the past, the law referred to the license to carry a handgun as a "concealed handgun license." However, on January 1, 2016, the law was enacted, allowing all registered license holders to carry their handguns openly in public. This means you no longer need to conceal your firearm.

The Motorist Protection Act

The gun laws are exceptionally lenient in Texas. However, gun owners must be aware of some laws when carrying guns in their cars. On September 1, 2007, the legislature passed the Motorist Protection Act. This law is also called HB 1815. HB 1815 permits any law-abiding motorist to carry a loaded handgun in their car without any kind of license. However, you should not have any severe misdemeanors or felony convictions on your record for the law to apply to you.

The legislature passed HB 1815 to protect motorists against armed robbers, thieves, and carjackers while driving their cars. Additionally, you only need a valid state identification to buy a gun, and you can keep the gun in your possession. This law permits your gun to be within reach while driving, though you must conceal it. A motorist must be the vehicle's legal owner to comply with the specifics of the HB 1815 statute.

However, there are some restrictions under HB 1815. You are not supposed to violate the law at any level higher than a basic Class C traffic misdemeanor, also called a "moving violation." If you violate the law in some way, your right to carry a firearm in your car under HB 1815 could be revoked. According to the law, every form of DWI in Texas is a Class B misdemeanor.

The Elements

The Motorist Protection Act (HB 1815) protects the Second Amendment rights of motorists who abide by the law while in their vehicles. This right can only be revoked if you violate the law, excluding basic Class C traffic misdemeanors. Usually, the lowest level of DWI in Texas is classified as a Class B misdemeanor. Your rights granted by HB 1815 could be revoked if you are found guilty of driving while intoxicated.

A DWI will also attract an unlawful carry of a weapon charge if there is a gun in your car. If you are charged with both crimes, then the burden of your criminal case lies in disproving your DWI charge. You should seek the services of a skilled DWI attorney since it can be challenging to fight your charges.

If the prosecutor accuses you of a DWI, he/she must prove the following elements:

  • You were driving a vehicle
  • You did so while intoxicated by alcohol or drugs
  • You were driving on a public road

You could face DWI charges in Texas even if you are not driving a vehicle. It is, therefore, a crime to both drive and to be in a state of actual physical control of the car while intoxicated.

You can only challenge your DWI charges by understanding how the prosecutor intends to prove the above elements of your crime. The prosecutor could use the following factors to prove that you were driving a vehicle while intoxicated:

  • You were in a vehicle, and the headlights were on
  • You were behind the steering wheel
  • The car keys were in your possession or on your person
  • The keys were in the ignition, even if the engine was not running
  • You were in the vehicle, and the engine was on

You could face DWI charges as long as any of the above factors were present and you were intoxicated. During the arrest, you could also face charges, whether awake or asleep.

Penalties For DWI And Unlawful Possession Of A Weapon Charges

You will face distinct penalties for your DWI charges and your unlawful possession of weapons charges.

Penalties For DWI Charges

You could face a DWI charge and penalties under three levels, all of which are covered under Penal Code 49.04. They include:

First DWI Level Charge

You could face a Class B misdemeanor charge if you had a blood alcohol concentration below 0.15. Class B misdemeanor charges could attract the following penalties:

  • A driver's license suspension of 90 days to one year
  • A jail term of three to 180 days
  • A fine that does not exceed $2,000

You could face a Class A misdemeanor charge if your blood alcohol concentration was more than 0.15. Class A misdemeanor charges could attract the following penalties:

  • A jail term that does not exceed one year
  • A fine that does not exceed $4,000

Second DWI Charge

A second DWI offense is often charged as a Class A misdemeanor. If you are guilty of this crime, you could face the following penalties:

  • A driver's license suspension of 180 to 730 days
  • A jail term of one month to one year
  • A fine that does not exceed $4,000

Third DWI Charge

A third DWI crime could be charged as a third-degree felony. If the judge charges you with this offense, you could face the following penalties:

  • A driver's license suspension of 180 days to two years
  • A jail term of two to ten years in a state prison
  • A fine that does not exceed $10,000

DWI, a third offense, is a serious crime that attracts severe penalties. A felony conviction could also revoke your voting rights. You could also be prohibited from owning or purchasing a firearm for at least five years.

Your DWI offense could automatically be charged as a felony if any of the vehicle's occupants were minors under the age of 15. This is regarded as child endangerment under Penal Code 22.041. This crime could attract the following penalties:

  • A driver's license suspension of up to six months
  • A jail term that does not exceed two years
  • A fine that does not exceed $10,000

However, if you are a first-time offender, you could be eligible for a "non-disclosure" program if you meet specific criteria. The criteria that you must meet will include:

  • The offense must be your first DWI offense
  • A blood alcohol concentration of between 0.08 and 0.14
  • Installing an IID in your vehicle for at least six months. An IID is breathalyzer equipment that you install in your car. It prevents your car engine from running if you have any alcohol content in your breath.

Your DWI attorney can help you apply for a non-disclosure program if you meet the above criteria. You could also qualify for a non-disclosure program after completing your two-year probation. Once enrolled in this program, the public will be restricted from accessing your criminal record.

Penalties For Unlawful Carry of a Weapon Charges

Unlawful carry of a weapon is a Class A misdemeanor. You could face the following penalties if you are guilty of this crime:

  • A fine that does not exceed $4,000
  • A jail term that does not exceed one year in a county jail

However, according to Penal Code 46.03, unlawful possession of a weapon could be a more serious crime if you take the firearm to any of the following prohibited areas:

  • University campus without the proper license
  • Where betting takes place or a racetrack
  • The secured section of an airport
  • Court of law or an office attached to a government agency, unless you have written authorization from the presiding authority
  • A designated polling station, either during early voting or on the day of the actual election
  • In a school or an institute of education
  • Premises or an establishment licensed to sell alcohol or an establishment whose business gains 51% profits from selling alcoholic drinks

You could face third-degree felony charges if you violate PC 46.03. Third-degree felony charges could trigger the following penalties:

  • A fine that does not exceed $10,000
  • A jail term that does not exceed ten years in a state prison

You could lose your gun rights under HB 1815 if you remove the gun from your car and carry it into any of the above areas.

Individuals Exempt From Unlawful Possession of a Weapon Charges

According to Penal Code 46.15, several categories of people are exempt from unlawful possession of weapons charges. These people are:

  • Police officers and court officials under Penal Code 46.15(a)
  • Certain active members of the military under Penal Code 46.15(b)
  • Certain adequately trained security officers who carry clubs or nightsticks under Penal Code 46.15(c) and 46.15(d)
  • Certain animal control officers under Penal Code 46.15(g)
  • Lawful firearm license holders
  • Hunters and fishermen
  • Individuals traveling through the state under certain conditions

The above exemptions have several intricacies, which can prove overwhelming. For example, if you are from another state and traveling through Texas, your state's firearm statutes will be applicable in Texas under certain conditions. However, this could only happen if there is state reciprocity between the two states.

A competent attorney with an extensive background in unlawful possession of weapon charges can evaluate the details of your case to ascertain if you qualify for exemption. How the above exemptions relate to a DWI charge depends on a variety of factors, including:

  • The leniency of the prosecutor in the county in which you were arrested
  • The specifics of your charges
  • Your prior criminal record, particularly if you have a prior DWI conviction

You should seek the services of a DWI attorney. An attorney can help you avoid facing both a DWI and an unlawful possession of a weapon charge.

DWI and Unlawful Possession of a Weapon Under Texas Law

It takes one felony DWI charge for you to lose your Second Amendment rights, even if you have a clean prior driving or criminal record. According to the current Texas firearm laws, you are not allowed to possess or carry a gun on your person if you have been convicted of a felony. This also applies to having a firearm within reach of your vehicle, according to HB 1815.

Once you are convicted of a felony DWI, you lose all your firearm rights, including the ability to own, carry, or buy any gun, for a period that does not exceed five years. It is advisable not to carry a firearm, even when your case is on hold. You can only resume carrying your firearm once your case is cleared. This restriction also applies to your rights under HB 1815.

The period of five years also extends to a defendant who has deferred adjudication or had to complete probation for their felony DWI charges. You could reapply to carry a firearm once the period lapses. Unfortunately, while re-applying, you must indicate on your application that you have been convicted of a DWI felony and your gun rights have been revoked for five years.

Defenses To A DWI And Unlawful Possession Of A Weapon Charges

You have two potential avenues of defense if you are accused of DWI in connection with unlawful possession of a weapon. First, you should challenge the underlying DWI charges. You could fight your DWI charges as follows:

  • Challenging the reliability of the outcome of field sobriety testing (FSTs)
  • Providing evidence showing that your car was not on a public road during your arrest
  • Contesting the reliability of the outcome of blood or breath alcohol testing. This can include proving that the breath test was wrongly conducted. You could also claim that the testing equipment was not correctly calibrated.
  • You can also claim that you were not driving a vehicle at the time you arrested

Proving Reasonable Doubt In Sobriety Tests

The overall strategy of avoiding joint driving while intoxicated and unlawful possession of weapon charges is challenging the underlying DWI charge. A DWI charge is the part of your case that triggers the related unlawful possession of a weapon charge. You should hire a skilled DWI attorney to help you achieve this.

Law enforcement uses two primary means to ascertain intoxication at a traffic stop. They use breathalyzers and field sobriety tests (FSTs). Unfortunately, these methods have inaccurate consistency. Breathalyzers are susceptible to giving false results. The following can affect the credibility of Breathalyzer readings:

  • Various types of food
  • Medications, and
  • Medical conditions

Breathalyzers detect any chemical substance partially made of the methyl group of chemical compounds. However, various medical diseases could cause unnaturally high methyl compound levels in a person's body. The most common diseases are auto-brewery syndrome and gastroesophageal reflux disease (GERD).

The police also use field sobriety tests (FSTs) that are prone to subjective assumptions and inaccuracies. Most experts agree that there is significant doubt about the credibility of FSTs.

Additionally, a defendant with a medical condition in their legs, arms, or spine cannot pass some FSTs under any conditions. You could claim that you are physically challenged and that being ordered to complete these tasks is legally unsound, as well as a violation of your civil rights.

Consequently, you could cast reasonable doubt on the entire DWI charge using the inherent weaknesses of FSTs. Once you win your DWI case, the judge could dismiss the related unlawful possession of a weapon charges because any person can possess a loaded or concealed gun under HB 1815.

If the court drops your DWI case, you cannot face unlawful possession of weapon charges because you were not committing the offense while possessing your weapon.

Apart from fighting your DWI charges, you can also present defenses against unlawful possession of weapons charges. For example, you could contest the legality of your initial traffic pullover. You could also fight the subsequent search carried out by law enforcement. You could allege that the police officers lacked probable cause or reasonable suspicion to stop or search you. You could also raise statutory defenses against unlawful possession of weapons charges. These could include:

  • You are an animal control officer.
  • You have a valid license to possess a weapon
  • You were traveling through Texas under certain conditions

Find a DWI Criminal Attorney Near Me

Facing DWI charges alongside the unlawful possession of a weapon in Texas is a serious offense. The potential consequences include jail time, hefty fines, and the loss of your gun rights. If you or your loved one faces DWI or unlawful possession of a weapon, the Fort Worth DWI Defense Lawyer can help. We have experienced lawyers who can help you fight your charges. Contact us at 817-470-2128 to speak to one of our attorneys.