I frequently represent clients charged with Driving While Intoxicated and Unlawfully Carrying a Weapon out of the same incident. Usually my client is unclear on why exactly he was charged with having a handgun in the car when he’s not a convicted felon and didn’t actually pull out the gun at any time. It may seem a bit strange but it happens all the time.

Today, football fans in Houston, Texas and Buffalo, New York, as well as sports fans across the nation are particularly interested in the interplay between Texas DWI and Weapons laws. That is because early Sunday morning, May 17, Former University of Houston star and current Buffalo Bills defensive lineman Ed Oliver, Jr. was arrested in Texas. Moving into his second year in the NFL, Ed Oliver is poised for a breakout season with the Bills. His offseason from this point on will be more complicated than he envisioned as Ed was pulled over by a sheriff’s deputy and eventually arrested for Driving While Intoxicated and Unlawfully Carrying a Weapon in Montgomery County, Texas – just north of Houston, Texas.


The information released by the police indicates that Ed was stopped after a citizen called in to report a reckless driver. It appears that Ed participated in the field sobriety tests on the side of the road and was eventually arrested for Driving While Intoxicated. On the authority of Ed’s consent or by a search warrant – it’s not clear which – Ed was then transported to a local hospital where a specimen of his blood was drawn for blood-alcohol analysis to be performed by a crime laboratory at a later date. Ed was then booked into the Montgomery County Jail on charges of Driving While Intoxicated, a Class B Misdemeanor, and Unlawfully Carrying a Weapon, a Class A Misdemeanor.


Section 49.04 of the Texas Penal Code provides that a person commits the offense of Driving While Intoxicated if the person is intoxicated while operating a motor vehicle in a public place.

In Texas, Driving While Intoxicated charges vary in nature and in punishment range depending on a variety of factors. For instance, if the person is facing his first DWI charge and the breath or blood test result is less than 0.15 blood alcohol content, the charge will be a Class B misdemeanor. The range of punishment for a Class B Misdemeanor in Texas is 0-180 days in county jail and 0-$2,000 fine, or both. However, if a test reveals that the blood alcohol content is 0.15 or higher, then the charge is upgraded to a Class A misdemeanor which carries a punishment range of 0-365 days in jail and 0-$4,000 fine, or both. Additionally, a charge that would ordinarily be a Class A or B misdemeanor is upgraded to a state jail felony if there was a child under 15 in the vehicle when the driver was arrested.

First time DWI charges where the breath/blood test result shows alcohol content less than 0.15 will be a Class B misdemeanor. Thus, for now at least, Ed Oliver is facing a Class B Misdemeanor. However, Texas law provides that where the driver had an “open container” of alcohol in his immediate possession, if convicted, he must serve a minimum term of confinement of six days. Here, it is alleged that there was an open beer can with beer in between Ed’s legs when he was arrested. This means he may face a minimum of 6 days in jail.


Regarding the “gun charge”, section 46.02 of the Texas Penal Code, in part relevant to Ed Oliver, provides that:

A person commits the offense of Unlawfully Carrying a Weapon if he:
– intentionally, knowingly, or recklessly
– carries on or about his person
– a handgun
– in a motor vehicle
– owned by the person or under the person’s control at the time in which:
– handgun is in plain view, unless LTC and in a belt or shoulder holster; OR
– engaged in criminal activity other than a class C misdemeanor traffic violation

You guessed it: “engaged in criminal activity” includes an allegation that he was driving while intoxicated. Thus, if the handgun was “on or about his person” Ed is subject to a charge of unlawfully carrying a weapon.

The next logical question is: what does “on or about his person” actually mean? It can mean a variety of things. Clearly, it includes holding the handgun in your hands, or storing the handgun in a pocket or in your belt. However, Texas courts have recently expanded “on or about the person” to include the area nearby, close at hand, convenient of access, and within such distance of the party so that, without materially changing his position, the party could get his hands on it. Basically, within reach.


It is unclear where exactly the officers found the handgun. But all signs indicate that it was not in his belt or actually on him. There’s certainly no report that Ed brandished or otherwise laid hands on the weapon. He would likely be facing a second degree felony if that were the case.

I imagine that the handgun was located in the console or under the front seat or in the door panel – something along those lines. But that is just speculation.

So when it’s reported that Ed was arrested for DWI and a “gun” or “weapons” charge, it sounds worse than it really is. Yes, he’s facing a weapons charge. But that weapons charge exists only by virtue of the DWI charge.

This is meant to provide a bit of general information only. I’ve written nothing about potential defenses to these charges, or my feelings about the sobriety testing used by officers in this case. I will address those items in another post.


If you or someone you know is facing a criminal charge in Texas, don’t hesitate to call Attorney Daniel Lazarine at 281-720-8551.