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Thread: Concealed Carrying and its limits

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    Concealed Carrying and its limits

    Hello All,

    I am hoping to get some clarification...

    Here's the scenario: I enjoy drinking at my house on the weekends but I also have a small dog that needs to go outside to the bathroom frequently. In northern VA having your own yard is pretty rare so anytime she needs to go out, I am going to be in the common area of our complex. If I had my own private yard I wouldn't feel the need to carry but since I am going through some sketchy wooded areas to let her relieve herself, I am much more comfortable concealed carrying. Is it legal for me to concealed carry if I am under the influence? Right now I leave my firearm at home because I am not going to risk it, but I would like to know if I have the option. Just so everyone knows: if I plan on drinking I never carry my gun, the question is, if I am drinking is it illegal to carry? I don't care about going out to bars and carrying... I am more concerned that if I have had some drinks at my house and I need to take my dog out, can I carry?

    Appreciate any information you may have.

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    It is in the details of your state statutes/laws. Ask a moderator to move your quesiton to the appropriate sub-forum.

    In Wisconsin on my private property, I do not hesitate to carry while drinking. In public I either am armed and sober or drink unarmed.
    I am responsible for my writing, not your understanding of it.

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    Moderator / Administrator Grapeshot's Avatar
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    Welcome to OCDO - lots of good peole here.

    Moving this to the Virginia sub-forum - state specific questions.
    Last edited by Grapeshot; 10-24-2014 at 09:30 PM.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Thanks guys. Sorry for the rookie mistake...

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    18.2-308.012. Prohibited conduct.

    A. Any person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor. Conviction of any of the following offenses shall be prima facie evidence, subject to rebuttal, that the person is "under the influence" for purposes of this section: manslaughter in violation of 18.2-36.1, maiming in violation of 18.2-51.4, driving while intoxicated in violation of 18.2-266, public intoxication in violation of 18.2-388, or driving while intoxicated in violation of 46.2-341.24. Upon such conviction that court shall revoke the person's permit for a concealed handgun and promptly notify the issuing circuit court. A person convicted of a violation of this subsection shall be ineligible to apply for a concealed handgun permit for a period of five years.

    B. No person who carries a concealed handgun onto the premises of any restaurant or club as defined in 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4.1 may consume an alcoholic beverage while on the premises. A person who carries a concealed handgun onto the premises of such a restaurant or club and consumes alcoholic beverages is guilty of a Class 2 misdemeanor. However, nothing in this subsection shall apply to a federal, state, or local law-enforcement officer.
    This is spelled out in the statute above in the first sentence, but there isn't a specific definition of "under the influence." That leaves it unclear whether it means ANYTHING or a certain blood alcohol level. I'm not a lawyer but I think a lot of this would depend on the responding officer and (if it came to this) a judge or prosecutor's discretion. I know that's not a direct answer, but I tend to err on the side of caution myself. Others may be more educated on this subject.

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    And welcome to OCDO!

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    Perfect. Thank you so much for the information. I assumed that would be the case but thought I would double check. Sounds like I need to buy me some land!

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    Quote Originally Posted by cjv View Post
    Perfect. Thank you so much for the information. I assumed that would be the case but thought I would double check. Sounds like I need to buy me some land!
    Buy me some too! In Loudoun County I could probably get a nice 2x2 foot patch... But a mighty kingdom it would be!

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    Campaign Veteran skidmark's Avatar
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    Another welcome to OCDO. If you do not join VCDL right away at least sign up for the free VA ALERTS newsletter - www,vcdl.org

    There being no legislated definition of "under the influence" for areas such as this, the preponderance of case law seems to hold that any discernable amount is "under the influence".

    Discretion being the better part of valor you might look into a taser or pepper spray or a rape whistle.

    stay safe.
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    Regular Member The Truth's Avatar
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    Quote Originally Posted by skidmark View Post
    a rape whistle.
    LOL'd hard!

    @OP, just Open Carry, don't drink more than a beer an hour if you must drink and OC (a good go-to to stay under the legal limit, typically), don't leave the complex or drive - especially with your pistol, and you should still be compliant with the law. If you're going through a wooded area anyway, why conceal? OC is just so much easier...

    I, too, follow the rule stated above: "If I'm drinking I'm unarmed. If I'm armed I'm sober."

    At my house and especially in my house is a little different story. I'm not going to lock up my pistol just because I plan on having a couple beers.
    Last edited by The Truth; 10-25-2014 at 12:22 AM.
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    So in actuality you have no evidence that anything wrong took place, you only believe that it could be spun to appear wrong. But it hasn't been. The truth has a funny way of coming out with persistence, even if it was spun negatively the truth would find its way because these people will not accept less.
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    Wow, is that a record? 4 hours being a member and already getting burned?

    Thank you all for the information. Rape whistle has been ordered on amazon.

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    Regular Member BlueSquid's Avatar
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    It's just that some of us know what goes on in those wooded trails at night...er...you know, from stories and such. I don't wanna talk about this anymore. Stop looking at me like that!

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    Campaign Veteran skidmark's Avatar
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    Sounds like I need to clarify my earlier post.

    The comment about discretion was in regards to what usually happens after a self defense act, and should not be taken as saying one should not carry at all. But if you really expect trouble and cannot figure out how to be somewhere else, at least bring all your friends who have all their guns with them.

    Large numbers of self defense incidents are resolved without a shot being fired, which means there would be no chance of running afoul of 18.2-308.012. You might find yourself dealing with a brandishing charge but if the situation was truely one of self defense my gut suggests the brandishee would see bringing the police into the matter as low on their list of things that are intelligent. OTOH, merely having a visible handgun holstered can cause some folks to become the most afraid they have ever been.

    So yes, if risk avoidance of legal problems is a higher priority than risk avoidance of criminal victimization then getting a taser or pepper spray or that rape whistle is the way to go.

    BTW - did you order the plastic, the stainless steel, or the brass one? And did you know that heart/cold/humidity can effect the operation of whistles that have a pea in the barrel (like the Fox 40 that everybody touts http://www.amazon.com/Fox-40-Classic.../dp/B0002Q9D3C) ? Whistles like the Storm http://www.stormwhistles.com/ do not have that pea.

    Here's some scientific test comparisons of non-pea whistles: http://briangreen.net/2011/03/safety...l-testing.html

    stay safe.
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    Quote Originally Posted by cjv View Post
    ... anytime she needs to go out, I am going to be in the common area of our complex...
    If that means you may be within grounds that could be covered by rules and regs, you may want to check if there are any prohibitions against oc firearms. If the rules can be changed, you may wish to consider if you started oc, if they would end up prohibiting it.

    Unfortunately, I think that there has been an HOA in NOVA that successfully (last i heard) passed rules prohibiting firearms on common property within their borders.

    Our right to keep and bear uninfringed should be being enforced universally, public and private.
    *I am not a lawyer. Nothing from me shall be construed as a magic cloak of legal advice. It's ultimately your tucas that's on the line. Keep examining the law anyway. The gov't, made up of people like us, is supposed to work for us, not against us. Let's find, correct, and avoid the wrongs before they're actively used against us, or we become innocently trapped by them. We're to be the masters. Let's vigilantly keep tabs on our servants who seek to rule us.

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    NC prohibits CC with any alcohol in your system.

    There is no mention in the laws of any restriction for OC with alcohol in your system.

    Mileage in your state may vary....

  16. #16
    Any change in speech, manner, or demeanor qualifies as under the influence under VA code. Under the influence is synonymous with impaired. You may open carry while intoxicated without running afoul of VA18.2-308.

    (You will still be arrested for drunk in public. Your gun will be held for safekeeping while you sit in jail and the state police will be notified regarding the circumstances that caused the local police to come into possession of your weapon.)
    Last edited by Douglas_Christian; 10-25-2014 at 06:12 PM. Reason: Clarity

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    Quote Originally Posted by Douglas_Christian View Post
    Any change in speech, manner, or demeanor qualifies as under the influence under VA code. Under the influence is synonymous with impaired. You may open carry while intoxicated without running afoul of VA18.2-308.
    So one will be cited as "under the influence" by only an occifer familiar with ones usual speech, manner or demeanor?
    I am responsible for my writing, not your understanding of it.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Douglas_Christian View Post
    Any change in speech, manner, or demeanor qualifies as under the influence under VA code. Under the influence is synonymous with impaired. You may open carry while intoxicated without running afoul of VA18.2-308.
    Welcome to OCDO!

    Consuming an adult beverage while OCing in public is still fraught with problems.
    https://medvinlaw.com/virginia-drunk...efense-lawyer/

    Would also think that a defensive use of a handgun while under the influence would be just a mite more difficult. We all make choices - hopefully the best ones.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member WalkingWolf's Avatar
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    Record, record, record, especially if you are drinking. It could very well save you some hassles in court if there is a claim you acted negligently just because you imbibed.
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    Quote Originally Posted by Nightmare View Post
    So one will be cited as "under the influence" by only an occifer familiar with ones usual speech, manner or demeanor?
    If Officer Kupke has reason to believe that you are a) under the influence of alcohol and b) you have, are, or are about to commit a violation of any of the listed crimes, he can apply for a warrant to have your blood drawn and tested He will probably cite speech, manner, and demeanor as his RAS for securing the warrant. My money is on you sitting in a holding cell while he goes to see the magistrate, gets a cup of coffee and a donut, takes a bathroom break, checks his email and plays some Angry Birds as opposed to waiting in the back seat for him to do all that stuff.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Accomplished Advocate peter nap's Avatar
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    1. Welcome to OCDO.
    2. Not burning but not being a fan of drinking and carrying, I 'll just refer you to Grapeshot and Skidmark.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by ChristCrusader View Post
    --snipped--
    Unfortunately, I think that there has been an HOA in NOVA that successfully (last i heard) passed rules prohibiting firearms on common property within their borders.
    Successfully, I seriously doubt. Do you have a cite?

    A Home Owners Association (HOA) is by accepted definition a municipality in the state of Virginia, and as such is preempted from making rules/laws relative to guns by the Code of Virginia.
    https://leg1.state.va.us/cgi-bin/leg...0+cod+15.2-915
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Quote Originally Posted by Grapeshot View Post
    Successfully, I seriously doubt. Do you have a cite?

    A Home Owners Association (HOA) is by accepted definition a municipality in the state of Virginia, and as such is preempted from making rules/laws relative to guns by the Code of Virginia.
    https://leg1.state.va.us/cgi-bin/leg...0+cod+15.2-915
    they might pass rules but that doesn't mean they are legal. And a "success" in passing rules just means that the rule-making body were able to get the votes in the committee to pass their rule,doesn't mean that the rule will have any weight if someone decides to ignore it, does it?

    ETA .. Just wanted to add that if I wanted to know the answer to a real estate question in Virginia, Grapeshot WOULD be the first person on OCDO I would ask
    Last edited by scouser; 10-26-2014 at 08:41 AM.

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    Quote Originally Posted by cjv View Post
    Hello All,

    I am hoping to get some clarification...

    Here's the scenario: I enjoy drinking at my house on the weekends but I also have a small dog that needs to go outside to the bathroom frequently. In northern VA having your own yard is pretty rare so anytime she needs to go out, I am going to be in the common area of our complex. If I had my own private yard I wouldn't feel the need to carry but since I am going through some sketchy wooded areas to let her relieve herself, I am much more comfortable concealed carrying. Is it legal for me to concealed carry if I am under the influence? Right now I leave my firearm at home because I am not going to risk it, but I would like to know if I have the option. Just so everyone knows: if I plan on drinking I never carry my gun, the question is, if I am drinking is it illegal to carry? I don't care about going out to bars and carrying... I am more concerned that if I have had some drinks at my house and I need to take my dog out, can I carry?

    Appreciate any information you may have.
    Actually it is quite common. More so than not having your own yard.

    Welcome aboard, we're pleased to have you with us. The responses you've received should have given you what you need to know for your questions.
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  25. #25
    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by scouser View Post
    they might pass rules but that doesn't mean they are legal. And a "success" in passing rules just means that the rule-making body were able to get the votes in the committee to pass their rule,doesn't mean that the rule will have any weight if someone decides to ignore it, does it?

    ETA .. Just wanted to add that if I wanted to know the answer to a real estate question in Virginia, Grapeshot WOULD be the first person on OCDO I would ask
    Appreciate the vote of confidence, but I'm just a plugger with a lot of well worn mental Cliff Notes.

    I think "success" means much more than that. The statute cited allows for potential recovery of legal expenses, BUT has no real teeth = punitive damages.......and it basically leaves the decision up to a judge AFTER someone has been arrested/charged, spent time and money to right a wrong.

    Even if never challenged or used, such rules have a chilling effect on exercising our RKBA.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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