Texas state law is very protective of residents’ Second Amendment rights to bear arms, even allowing all Texans to carry firearms in their cars without the need of any kind of permit. There are some cases, however, where these rights can be revoked, including both misdemeanor and felony DWI. If you are facing charges like these and are located in the Fort Worth, Texas area, then contact Andrew Deegan DWI Attorney at Law right away.

What Is an Unlawful Carry of Weapon (UCW) in Texas?

The Unlawful Carry of Weapon (UCW) charge is delineated under Texas Penal Code, Sections 46.02 (a-1). Most UCW cases involve handguns, particularly those that intersect with DWI charges. Under most circumstances, it is a Class A misdemeanor, though it can in some cases become a 3rd Degree Felony. Officially, the crime of UCW is committed if the defendant unlawfully and/or recklessly carries on their person a handgun in a motor vehicle or watercraft that is either owned by them or under their lawful control at the time.

State law in Texas referred to the license to carry a handgun as a “concealed handgun license” (CHL) in the past. However, as of January 01, 2016, the state allows all registered license holders to lawfully open carry their handguns in public. The passage of this law means that your firearms no longer need to be concealed and so the term CHL has been changed to the more general “license to carry” (LTC).

The Motorist Protection Act In Texas

The gun laws in Texas are exceptionally lenient when compared to other states, although there are some caveats that gun owners should be aware of when carrying guns in their vehicles. As of September 01, 2007, the Texas legislature passed the Motorist Protection Act (also known as HB 1815), allowing any law-abiding Texan to legally carry a loaded handgun inside their car without having to have any kind of permit, including an LTC. This means that you cannot have any serious misdemeanors or felonies on your record in order for the law to apply to you.

HB 1815 was passed to allow motorists to protect themselves from carjackers, thieves, or armed robbers while operating their motor vehicles. Furthermore, in order to purchase a gun in Texas, only a valid state identification card is needed and the owner can keep the gun holstered or on their person. HB 1815 explicitly allows for the gun to be “within reach” while the owner is operating the vehicle in question, though it must be concealed. The operator of the vehicle must legally own or control the vehicle in order to adhere to the specifics of the HB 1815 law.

There are some caveats, however. The operator of the vehicle cannot be actively violating the law at any level higher than a basic Class C traffic misdemeanor (otherwise known as a “moving violation”). If the operator in question is violating the law in some way, then their right to carry a firearm in the car under HB 1815 is rendered null and void. It is important to note that every form of DWI in Texas is at least a Class B misdemeanor.

Furthermore, the owner may not recklessly, intentionally, or knowingly carry a loaded gun on a school vehicle. As of August 01, 2016, LTC permit holders are exempted from this caveat and they may keep their guns out of plain view and locked in a vehicle in school parking structures or lots. As is evident by the Motorist Protection Act, the Second Amendment is aggressively defended in the Texas legislature and gun owners have a great deal of freedom when exercising their Second Amendment rights.

What are the Penalties for UCW?

The crime of UCW is usually classified as a Class A misdemeanor. The punishment may include:

  1. Up to one (1) year in county jail.
  2. A fine of up to four-thousand dollars ($4,000).

However, under Texas Penal Code 46.03, the crime of UCW becomes significantly more serious if the defendant allegedly brings the firearm to any of the following forbidden locations:

  1. An establishment or premises that are licensed to sell alcoholic beverages or whose business is mostly comprised (51% of profits) of selling alcoholic beverages.
  2. An institute of education or school.
  3. A designated polling place, either on the day of the actual election or during early voting (any time people are actually voting there).
  4. A court of law or an office attached to a government agency or court of law unless given written authorization by the presiding authority.
  5. The secured portion of an airport.
  6. Racetrack (where betting takes place).
  7. University campus without the proper permit.

If the Penal Code, Section 46.03 is violated, then a UCW becomes a 3rd-degree felony. This means it can be punishable by up to ten (10) years in prison and up to a ten thousand dollar ($10,000) fine. Please note that the act of removing the gun from your car and carrying it into any of these above areas is what will trigger the Section 46.03 violation; by taking it out of the vehicle, you are rendering the protections granted by the Motorist Protection Act (HB 1815) as null and void.

Exemptions from UCW Charges

Under the Penal Code, Section 46.15, Texas gun statutes allow for various classes of people to be exempt from UCW charges. These include:

  1. People who are traveling through the state (under certain conditions)
  2. Fishermen and hunters
  3. Lawful LTC holders
  4. Court officials and law enforcement officers under Penal Code, Section 46.15(a)
  5. Certain active members of the military under Section 46.15(b)
  6. Certain properly trained security officers who carry nightsticks or clubs under Sections 46.15(c) and 46.15(d)
  7. Certain animal control officers are exempt under Section 46.15(g)

These various exemptions have a variety of intricacies that can quickly prove overwhelming. For example, if you are traveling through Texas from another state, then those state’s gun laws will be respected within the borders of Texas under certain conditions and if there is “state reciprocity” between both states.

An experienced criminal lawyer with an extensive background in UCW charges will need to look over the details of your case to determine if you match one of these exemptions. Furthermore, how these exemptions interact with a DWI charge will rely on a complex variety of factors, including your prior criminal history (especially if you have previous DWI convictions), the specifics of your case, and the leniency of the prosecutor in the county in which you were arrested. It is crucial that you seek out the services of a DWI lawyer who knows the ins and outs of these situations and can successfully argue that you not be subjected to both DWI and UCW charges.

What are the Penalties for DWI?

State laws in Texas effectively allow for multiple chances in driving while intoxicated (DWI) cases. There are essentially three (3) levels to a DWI charge, all of which are collectively delineated under Texas Penal Code, Section 49.04. The penalties are as follows:

  1. 1st DWI - If the defendant had a blood alcohol concentration (BAC) that was less than 0.15, then it is a Class B misdemeanor and includes a fine no greater than two-thousand dollars ($2,000), a jail sentence of three (3) to one-hundred eighty (180) days, and a driver’s license suspension of ninety (90) days to one (1) year. If the BAC was more than 0.15, however, then it becomes a Class A misdemeanor and the fine doubles to four thousand dollars ($4,000) and the jail sentence is one (1) year.
  2. 2nd DWI - This is a Class A misdemeanor. The maximum fine is four thousand dollars ($4,000), a custodial sentence of one (1) month to one (1) year, and suspension of the driver’s license from one-hundred eighty (180) days to seven-hundred thirty (730) days.
  3. 3rd DWI - At this point in time, the crime of DWI is treated as a 3rd-Degree Felony. The maximum fine is ten-thousand dollars ($10,000), a prison sentence of two (2) to ten (10) years, and suspension of the driver’s license from one-hundred eighty (180) days to two (2) years.

It is important to note that categorizing DWI 3rd offense as a felony means that it is a serious crime with potentially severe penalties. Furthermore, being convicted of a felony may disenfranchise you (you will no longer be allowed to vote) and will legally prohibit you from purchasing and/or owning a firearm for at least five (5) years.

If you get a DWI conviction in Texas and any of the occupants of the vehicle are under the age of fifteen (15) years old, then the offense automatically becomes a felony. This is technically considered to be child endangerment and is delineated under Texas Penal Code, Section 22.041. The offenses for a violation of Section 22.041 include:

  1. A fine of up to ten thousand dollars ($10,000).
  2. Imprisonment of up to two (2) years.
  3. Suspension of the driver’s license for up to six (6) months.

However, there is a “non-disclosure” program that is potentially available for first-time offenders if certain criteria are met. Your BAC had to have been between 0.08 and 0.14 when you were arrested for the DWI 1st offense and you have to install what is known as an “ignition interlock device” for at least six (6) months. This is essentially a breathalyzer that you install into your personal vehicle that blocks your ability to turn the car on if you have any alcohol on your breath.

If these criteria are met, then two (2) years after your probation has ended for the DWI 1st offense, your DWI lawyer can help you apply for this non-disclosure program. Upon being accepted, it then limits who can see your criminal record. It is, in essence,  a chance for you to have a clean slate if you have sufficiently learned your lesson from your run-in with the law.

DWI and UCW Under Texas Law

Even if the defendant has a prior driving and/or criminal record that is completely clean, it only takes one felony DWI for them to potentially lose their Second Amendment rights. Under current Texas gun statutes, no felon is legally allowed to own and/or carry a gun “on their person”. This includes having a gun within reach in their car in accordance with the Motorist Protection Act (HB 1815). 

As noted above, a DWI in Texas may result in a felony charge if certain conditions are met. However, a first-time offense is usually a Class B misdemeanor while a third-time DWI or any DWI that constitutes child endangerment are always felonies.

Consequently, the moment you are convicted of a felony DWI, then you lose all gun rights, including the ability to purchase, carry, and/or own, any firearm for a period of five (5) years. Furthermore, criminal attorneys will advise you to not carry a gun even while the charges are pending; only once your charges have been cleared may you resume carrying a firearm. This prohibition also extends to the rights afforded under HB 1815; if you are a felon, then that law no longer grants you the same rights as law-abiding Texans who do not have a felony on their records.

This period of five (5) years also applies to any defendants who had to complete probation and/or deferred adjudication for their felony DWI charges. Once this period of time is up, then you are free to re-apply to carry a gun. However, when doing so, you must mention on the application that you had a felony DWI conviction and that you had your gun privileges revoked for five (5) years.

What Does the Prosecutor Have to Prove for DWI/UCW Charges?

Because the Motorist Protection Act (HB 1815) protects the Second Amendment rights of all law-abiding Texans while in the confines of their car, that means that it can only be revoked if the vehicle operator in question somehow violates the law (excluding basic Class C traffic misdemeanors). Remember that even the lowest level of DWI in Texas is a Class B misdemeanor. Therefore, driving while intoxicated renders the rights granted by HB 1815 as null and void.

That means that getting a DWI will trigger a UCW charge if there is a gun in the car. Consequently, if you have been charged with both a DWI and a UCW, then the crux of your criminal case lies in disproving your DWI charge. This is challenging, although Andrew Deegan DWI Attorney at Law is extensively versed in precisely these sorts of cases.

In order to secure a DWI charge in the state of Texas, the prosecutor will have to prove three (3) “elements of the crime”:

  1. That you were in control or operating the motor vehicle in question.
  2. That you were intoxicated by drugs and/or alcohol.
  3. That you operated said a motor vehicle on a “public road”. 

In the state of Texas, it is possible to be charged with DWI even if you are not actually driving the vehicle. This is why state laws make it illegal to both “operate” or to be in a state of “actual physical control” while intoxicated.

Understanding how the prosecutor intends to prove these elements of the crime is critical in determining how best to fight back against your DWI charge. The prosecutor will use any of the following factors to prove that you were unlawfully operating or controlling the vehicle while intoxicated:

  1. You were behind the steering wheel of the car.
  2. You had your car keys on your person or in your possession.
  3. You were in the car and the engine was running; please note that you do not necessarily have to have been in the driver’s seat.
  4. You were in the car and your headlights were on.
  5. Your keys were in the ignition, even if the engine was not running.

It does not matter if your car was parked (legally or illegally) or you were asleep or awake as long as any number of these factors were present and you were intoxicated.

Establishing Reasonable Doubt with Sobriety Tests

In order to avoid a joint DWI/UCW charge, the overall strategy is to fight the DWI charge as this is the part of your case that triggered the related UCW charge. In order to successfully achieve this, it is absolutely vital that you contact a DWI attorney as early in your case as possible. Andrew Deegan DWI Attorney at Law has an extensive track record of successfully defending clients facing DWI charges in a trial setting. We have primarily been able to achieve this by customizing legal strategies based on the particular details of each and every case.

Throughout our years of experience, we have found that there are a number of potentially successful strategies for beating a DWI charge in a court of law. Some of the most compelling arguments lie with establishing “reasonable doubt” with the means or methods used to establish legal intoxication.

The two primary means that police officers use to determine intoxication during a traffic stop are breathalyzers and “field sobriety tests” (FSTs). Contrary to popular belief and the general narrative that law enforcement has furthered over the years, neither of these methods are consistently accurate.

Breathalyzers are particularly susceptible to generating “false positives” due to various factors, including medical conditions, medications, and even various kinds of food. Breathalyzers work by detecting any chemical substance that is partially made up of the “methyl” group of chemical compounds.

However, there are several medical diseases that cause unnaturally high levels of methyl compounds in the human body. The two most common are Gastroesophageal Reflux Disease (GERD) and auto-brewery syndrome. GERD is essentially a chronic condition of extreme heartburn and acid reflux which can easily throw off a breathalyzer and cause a false positive. Auto-brewery syndrome is a medical condition in which certain people have yeast in their digestive system that causes them to naturally ferment sugar-rich foods into gaseous ethanol, thereby also causing a false positive.

Breathalyzers can also render false positives when:

  1. A person breathes paint and/or gasoline fumes - This is common in someone who works in an industry or setting where these fumes are persistent and omnipresent, like in an auto-body shop, as a general contractor, or a mechanic.
  2. A person suffers from diabetes and/or hypoglycemia - Due to irregularities in the metabolisms of these patients, they frequently exhale high volumes of a methyl-based compound known as “acetone”. The breathalyzer is unable to distinguish between ethanol (the active type of alcohol found in alcoholic drinks) and acetone, resulting in false positives.
  3. A patient suffers from asthma or chronic obstructive pulmonary disease (COPD) - Extensive research has concluded that nearly all types of inhalers used to treat both chronic and acute asthma as well as COPD can cause false positives in a breathalyzer. This includes not only the inhalers that have aerosolized ethanol, but also those that contain other active ingredients like fluticasone, salmeterol, budesonide, formoterol, and salbutamol (all inhalers, essentially).
  4. The defendant used over-the-counter (OTC) cough and cold medication - There have been numerous cases where even small amounts of OTC medications have caused false positives in breathalyzer tests.

Law enforcement also uses a battery of on-site physical and mental exercises known as “field sobriety tests” (FSTs) that are rife with inaccuracies and problematic assumptions. There has been a substantial amount of research that calls into question the scientific validity of these tests, as well as a now extensive history of expert testimony that casts considerable doubt on the applicability of FSTs.

Furthermore, defendants who have medical conditions in their spines, arms, and/or legs that cause limited mobility may not be able to “pass” some of the FSTs under any conditions. We can potentially argue that having someone who is physically disabled complete these tasks is not only legally unsound but a violation of their civil rights as well.

Consequently, it is possible to use the inherent weaknesses in FSTs to cast reasonable doubt on the entire DWI charge. Once you have defeated the DWI charge, then the related UCW charge is dropped since any and all Texas residents can carry a loaded gun, concealed and within reach, inside their vehicle under provisions of the Motorist Protection Act (HB 1815).

Find a DWI Lawyer Near Me       

If you are facing a DWI charge with a related UCW charge, then you absolutely must retain the best legal representation possible. Fighting a DWI charge is tricky, though establishing reasonable doubt in the sobriety tests is the most reliable way to win these cases. If you are located in the Fort Worth, Texas area and require criminal legal representation, then call Andrew Deegan DWI Attorney at Law immediately at 817-470-2128.