• Walker & Taylor, PLLC

Arrested While Carrying

Updated: Feb 3, 2020

Texas License to Carry a Handgun ("LTC") holders are typically leaps and bounds above-average Texans when it comes to knowing how to follow the law. But, what about a situation where an LTC holder is arrested while their handgun is on or around them? Let's review a common scenario where this may happen.

John just ordered a double-cheese-double-pepperoni pizza to share with friends when it hits him like a ton of bell peppers. What's the only thing on Earth that could complement the 'za AND quench his thirst? How about a pint of the finest beer available? Because he drove to the restaurant, John decides to have only one (along with a few cups of water for good measure).

After a couple of hours, the pizza is gone, and John's friends aren't far behind; it’s time to leave. John gets into his truck and transfers his handgun from his center console to his belt holster. On his way home, he's shaken from his dairy-induced daze by a loud siren and flashing red, white, and blue lights. His mind races – what did he do? John pulls over, rolls down his windows, and waits.

The officer walks up, asks for John's driver's license and car insurance, and he hands those, plus his LTC to the policeman. Next, he asks where John keeps his gun. John tells him it's in his belt holster, and the officer tells him to leave it there and not make any sudden movements.

The officer then asks where John is coming from, and he says Pistol Phil's Pizza. Phil's is known not only for its delicious deep-dish, but also for its craft beer collection. He then asks if John had anything to drink tonight, and he tells the officer about the one pilsner a couple of hours ago.

Next thing he knows, John is stepping out of his truck and the officer disarms him. Next, John must perform roadside gymnastics on a rocky Mars-like terrain while the cruiser lights are still flashing, and cars are whizzing by. The officer has what he needs and arrests John for Driving While Intoxicated. Despite his factual (and most likely legal) innocence, John is headed down another bumpy road toward freedom.

Upon arrival at the County Jail, the patrolman informs John because he had his legal pistol on him while committing the Class B Misdemeanor of Driving While Intoxicated, he'll now be facing another charge.

Legal Ramifications

Under Texas Penal Code § 46.02(a-1), if a license holder is carrying a firearm concealed or openly in a shoulder or a belt holster while intoxicated, they can be charged with Unlawful Carrying of a Handgun by a License Holder, a Class A Misdemeanor (punishable by up to 365 days in the county jail and a fine of up to $4,000).

Now that bogus DWI has a nasty bonus charge, and the prosecutor handling John's cases will also determine what happens to his Kimber Ultra Carry II. His pistol is now evidence of an alleged Class A Misdemeanor, and he will not get it back unless either: the case is dismissed by the prosecutor, or he proceeds to a trial to prove his innocence and obtains a "Not Guilty" verdict.

Even if one of those two scenarios unfold, John (or his attorney) must still file a separate motion asking the judge to authorize the release of his firearm. Otherwise, many Texas counties will simply seize the firearm forever (or at least until they need to destroy it to make more room for other seized property).

That means if the prosecutor does not want to dismiss John's case, and he decides to either pay an attorney or apply for a court-appointed attorney for a trial, John could be convicted of the crimes AND also lose his driver’s license, his LTC, and his Kimber!

Once a firearm is taken by the State, even if a person was NOT arrested (or they were incorrectly charged with Unlawful Carry of a Weapon), it is a Sisyphean task to get it back. Our firm has helped several folks whose firearms were seized after a car accident or simple misunderstanding. Most of those firearms were returned after multiple conversations with different law enforcement agencies, long waiting periods, and even court appearances.

It is vital to hire experienced attorneys if you or a loved one are arrested while carrying a firearm. It could mean the difference between losing or keeping your money, your LTC, your firearm, and your freedom.

Author: Colm Keane

DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.

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