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Thread: VA alcohol clarification

  1. #1
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    Generally I don't drink whatsoever, but occasionally I like something with dinner when eating out.

    Per VA code, am I not allowed to have a margarita when carrying?


    And along those lines, why exactly do we need to OC at an ABC establishment? Gov Kaine shot down the effort to change the code.

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    1) You would probably get more replies if you posted in the VA forum.

    2) You can have whatever you want to drink when OC'ing, but the sight of this is very detrimental to our cause. If you want to drink, leave it at home or in the trunk. Also, good luck explaining your "self defense" case in court when the records show you were under the influence. The prosecuting attorney would tear you a new one.

    3) The current code specifically says that one may not carry "concealed" into a restaurant that has an ABC license. Since it doesn't say anything about OC, then you can OC.

    IANAL

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    Maybe he wasn't, but I took the second question to mean "what's the reasoning behind forcing OC when in an ABC on establishment?" Even if he wasn't, I'm curious.


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    the only statute in 308 that deals with consuming alcohol is this:

    J1. 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, shall be 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.

    Where, you must be carrying concealed to be charged with any firearm related offense. So, if you are going to get blitzed and carry, OC... JK!!!

    Even OC'ing and having a few is going to create major issues for you if you must use. Drinking while carrying is a personal choice, I wouldn't have more than one personally.

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    Founder's Club Member Tess's Avatar
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    Just had this conversation on another thread, in the general forum.

    What if you've had an alcoholic drink and SHTF? You have to draw, and perhaps fire. In addition to explaining your rationale, where you got your training, etc. -- all the stuff the police, the press, and the lawyers are going to ask -- you have to face the "he had been drinking" witness.

    It's just not a chance I'm willing to take. I don't want to deal with the Brady-loving soccer mom who worries that her darling will be scarred forever because he saw a bad guy face justice, while not worrying that sweetums will be scarred by watching a bad guy beat the snot out of, maim, or kill innocents.

    As to why the law reads as it does -- politicans make laws. Yesterday I heard one (a Virginia legislator) say "we have to make laws so people know how to abide by them". While that's probably not what he meant, he did say it.
    Laws alone can not secure freedom of expression; in order that every man present his views without penalty there must be spirit of tolerance in the entire population. -Albert Einstein

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    Anyone as to Why? I know what the law says, I'm asking the deeper "why"?

    What line of reasoning led to CC not OK, OC OK?

    -Ryan

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    SaltH2OHokie wrote:
    Anyone as to Why? I know what the law says, I'm asking the deeper "why"?

    What line of reasoning led to CC not OK, OC OK?

    -Ryan

    this is just my thought ------

    Lets say you're in a bar or club and everyone is having a few drinks, some are having a few too many. You know how alcohol brings out the stupid in some people, and of course its going to affect a persons judgment and they won't think as reasonably compared to being sober.

    Now lets say that you are CC and after a few drinks some drunk guy comes over and starts harassing your girlfriend. The drunk guy doesn't know your CC. You have had a few margaritas and have a buzz. You get mad at the drunk for disrespecting your girlfriend and youretaliate...and you have a gun that the drunk didn't know about because he didn't see it. It might not be good for the drunk guy !!

    Now lets say that you were OC and you were at the same club and everyone could see the gun, including the drunk. I'm thinking that even a drunk would have enough sense to pick a fight with an armed man.

    Kinda like back in school when the bully would pick on the smaller weaker kids. Yea he might run up on a lil guy who's a blackbelt and the lil guy would kick his ass, but only because the bully couldn't see the weapon that the lil guy possessed, his knowledge of martial arts. If the lil guy had his karate uniform on with his black belt around his waist then the bully would know what he would be up against , and go pick on someone else.

    Back to the drunk guy.....you put 50 soberstrangers in abar and they will be just fine. You give them all alcohol to drink and there will be a fight ... 99% guaranteed !!

    Too many people that don't know how to act when they're drunk... but they probably won't pick a fight with a man they know is armed ... or a blackbelt.

    The sight of your OC pistol serves as a warning to the drunk.


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    this is how drunk people shoot guns !!

    http://www.youtube.com/watch?v=9lzri8dn7p0





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    I think the "why" is partly because of what was originally said. People who OC while at a bar will not get drunk and will probably therefor not create a problem. If you allow people to CC that person is more likely to become intoxicated and then you could obviously have some significant problems.

    But then again you get to the reality of the matter and ask do the people who would use a gun irresponsibly regardless CC while at the "club" anyways? Probably. Would someone who is generally pretty responsible and law abiding, if CCing and drinking, act in a violent or irresponsible way with his firearm? Probably not.

    All in all? The freedom side of me would like to see you be able to CC. The realism side of me thinks that having more sober OCers and less intoxicated CCers is a better idea.

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    Founder's Club Member Tess's Avatar
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    I'm more cynical. I suspect someone wrote a law to prohibit concealed carry in restaurants that serve alcohol, and no one thought about open carry in that same situation. Then, once it became known, the politicians realized they didn't have the votes to change it.


    Laws alone can not secure freedom of expression; in order that every man present his views without penalty there must be spirit of tolerance in the entire population. -Albert Einstein

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    Tess wrote:
    I'm more cynical. I suspect someone wrote a law to prohibit concealed carry in restaurants that serve alcohol, and no one thought about open carry in that same situation. Then, once it became known, the politicians realized they didn't have the votes to change it.

    That's what I was thinking too Tess, but you put it better than I would have.

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    Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546 (2001).


    "[The legislature] in enacting criminal statutes legislates against a background of Anglo-Saxon common law . . . ." Part of this common law is the doctrine of self-defense. . . . [S]tatutes rarely enumerate the defenses to the crimes they describe. . . . We do not believe that [the legislature] intended to make [convicted felons] hapless targets for assassins. The right to defend oneself from deadly attack is fundamental. [The legislature] did not contemplate that [Code 18.2-308.2] would divest convicted felons of that right....Further, as the Commonwealth acknowledges, "[t]he fact that a man has been drinking does not ipso facto deprive him of the right of self-defense, even though the necessity for the exercise of the right might not have arisen had neither he nor his aggressor been drinking." Hawkins v. Commonwealth, 160 Va. 935, 941, 169 S.E. 558, 560 (1933); see Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546-47 (1998) (holding that accused was not at fault in inviting aggressors to his house for drinks). Gilbert v. Commonwealth, 28 Va. App. 466, 473, 506 S.E.2d 543, 546 (1998).



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    SaltH2OHokie wrote:
    Anyone as to Why? I know what the law says, I'm asking the deeper "why"?

    What line of reasoning led to CC not OK, OC OK?

    -Ryan
    Simply, I think, because our legislators responded emotionally to the anti-defense crowd and the guns and alcohol don't mix thing, thereby slapping the hands of permit holders. This was reinforced when Gov. Kaine vetoed a bill which would have corrected this wrong - at least in part.

    So why was OC not addressed as an issue at the same time? Because not enough of our elected reps wanted to go there and the numbers of OCers was small. The logic was if you can see it, it isn't a threat. Yes, I know - the same condition in which antis see "it" and consider "it" a threat. No one said the law or our elected servants were logical.

    Yata hey
    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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    hsmith wrote:
    J1. 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, shall be guilty of a Class 1 misdemeanor.

    ...

    Where, you must be carrying concealed to be charged with any firearm related offense. So, if you are going to get blitzed and carry, OC... JK!!!
    Ah, the joys of interpreting laws!

    I disagree with your interpretation here. Notice that the carrying phrase doesn't say anything about concealment, only the permit phrase. So it seems to me that if you have been issued a Concealed Handgun Permit and then get drunk while OC in a public place, you've just committed a Class 1 misdemeanor.

    And even if I'm wrong, that's how I'm gonna act since it has a better chance of keeping me out of the hoosegow.

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    simple formula:

    guns + alcohol = recipe for disaster



    have a virgin margarita instead if you feel the need while out with friends- then go home, secure your weapon and then bring out Mr. Cuervo





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    TexasNative wrote:
    hsmith wrote:
    J1. 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, shall be guilty of a Class 1 misdemeanor.

    ...

    Where, you must be carrying concealed to be charged with any firearm related offense. So, if you are going to get blitzed and carry, OC... JK!!!
    Ah, the joys of interpreting laws!

    I disagree with your interpretation here. Notice that the carrying phrase doesn't say anything about concealment, only the permit phrase. So it seems to me that if you have been issued a Concealed Handgun Permit and then get drunk while OC in a public place, you've just committed a Class 1 misdemeanor.

    And even if I'm wrong, that's how I'm gonna act since it has a better chance of keeping me out of the hoosegow.
    J1. Any person permitted (1) to carry a concealed handgun, who is under the influence (2) of alcohol or illegal drugs while carrying (3) such handgun in a public place (4), shall be guilty of a Class 1 misdemeanor.
    __________________________________________________ __________________

    All four (4) conditions would need to be satisfied to have a charge brought under this statute. So if you do not have a permit and are OCing but satisfy the other 3 criteria then it would appear that this charge might not stick. Conversely, you have a CHP, drink to much in a public place and are OCing, then this charge can be piled on with others. Hmmmm.........

    This would appear to apply to LEOs and Commonwealth Attorneys as well as they are "permitted" to carry concealed.

    Yata hey
    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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    SaltH2OHokie wrote:
    Anyone as to Why? I know what the law says, I'm asking the deeper "why"?

    What line of reasoning led to CC not OK, OC OK?

    -Ryan
    My best guess is that it's a legal loophole. Some decided that it would be a bad idea for law abiding CHP holders to carry and possibly drink, so they made it illegal. But, they didn't consider the fact that you don't have to carry concealed. Again, just my guess.

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    Carolina40 wrote:
    simple formula:

    guns + alcohol = recipe for disaster



    have a virgin margarita instead if you feel the need while out with friends- then go home, secure your weapon and then bring out Mr. Cuervo



    And if Mr BG comes in uninvited while Mr Cuervo and I are getting acquited - what then?

    No sir, I will not OC and drink in public. At home I will retain my arm and enjoy a wee bit if I like.....but in great moderation.

    Yata hey
    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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    Carolina40 wrote:
    simple formula:

    guns + alcohol = recipe for disaster



    have a virgin margarita instead if you feel the need while out with friends- then go home, secure your weapon and then bring out Mr. Cuervo



    That logic undermines the original reason given for not OPEN carrying while drinking, it makes it easy for people to paint the OC crowd with "irresponsible" brush. The table across the restaurant only sees 1.) gun and 2.) big margarita glass. They don't sniff for tequila.

    That's just a devil's advocate argument. I'm of the opinion that I won't do it in public because of the aforementioned taboo, but that I certainly could carry and drink A drink just the same as I could drive after said drink...

    Now, I have a friend, who carry's 110% of the time (to include fully intoxicated) and that never gives me the warm and fuzzies, so I 100% disagree with getting hammered and carrying, but in a perfect world, having 1 beer with dinner would be fine by me [but in a perfect world, I wouldn't need my sidearm in the first place.]

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    The thing is, you can drive over to WV and carry concealed in an alcohol serving restaurant.

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    chris in va wrote:
    The thing is, you can drive over to WV and carry concealed in an alcohol serving restaurant.
    someone please correct me if i am wrong. Back in the days before we got "shall Issue" permits you could carry concealed in an ABC establishment. If i recall correctly the "restaraunt ban" was thrown in as a last minute addttion to the current "shall issue" statute.

    The reason OC is the order of the day for ABC restraunts in VAis that it is the only legal carry method available to every citizen. The citizens called police and commonwealth attorneys are allowed to carry concealed in ABC restraunts.



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    TexasNative wrote:
    hsmith wrote:
    J1. 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, shall be guilty of a Class 1 misdemeanor.

    ...

    Where, you must be carrying concealed to be charged with any firearm related offense. So, if you are going to get blitzed and carry, OC... JK!!!
    Ah, the joys of interpreting laws!

    I disagree with your interpretation here. Notice that the carrying phrase doesn't say anything about concealment, only the permit phrase. So it seems to me that if you have been issued a Concealed Handgun Permit and then get drunk while OC in a public place, you've just committed a Class 1 misdemeanor.

    And even if I'm wrong, that's how I'm gonna act since it has a better chance of keeping me out of the hoosegow.
    Texas - you are missing the crucial word in the statute that gives it its meaning - "such"

    "Such" handgun refers to the type of handgun, or more specifically, the manner in which it is carried byan individual with a CHP- a concealed handgun.

    Try this, take our "concealed" and replace it with "purple". Now read the statute -

    J1. Any person permitted to carry apurple handgun, who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place, shall be guilty of a Class 1 misdemeanor.


    The phrase isnt "any person carrying a gun", its any person permitted to carry a concealed handgun who is carrying what? a concealed handgun. That means that if you have a permit and are openly carrying, you are not violating this statute by drinking. Its not advisable as other have stated, but its not illegal either. I know that there is an individual here who has already tested this in court and won. I'm sure that they will speak up if they see this thread.

    One of the more important classes that we teach is the class on Virginia laws because they are truly a mess. One word, like "such" can change the meaning of the statute and its easy for the average citizen (and LEO as well) to misinterpret the meaning of the statute. There's a number of Va. laws like this.
    James Reynolds

    NRA Certified Firearms Instructor - Pistol, Shotgun, Home Firearms Safety, Refuse To Be A Victim
    Concealed Firearms Instructor for Virginia, Florida & Utah permits.
    NRA Certified Chief Range Safety Officer
    Sabre Red Pepper Spray Instructor
    Glock Certified Armorer
    Instructor Bio - http://proactiveshooters.com/about-us/

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    Purple isn't a very good substitute for concealed, because it describes the handgun directly, rather than the manner in which it's carried.

    Neither of us can state categorically whether or not "such gun" carries the "concealed" description with it, because that would have to be settled by case law (have any?) As I said before, I choose to follow the safer route and avoid being the test case.

    At any rate, what you state as fact is actually your opinion, as is mine, PS. Once again, I have to say that I think when you and others put forth your opinion as settled law when it is anything but that, you can mislead some newer folks who'll just trust what you say. And it's for that reason that I take the counter position. Not (just) because I like to be argumentative , but also to provoke folks to consider all sides of the issue, and not just depend on someone's potentially faulty opinion.

    ~ Boyd

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    TexasNative wrote:
    Purple isn't a very good substitute for concealed, because it describes the handgun directly, rather than the manner in which it's carried.

    Neither of us can state categorically whether or not "such gun" carries the "concealed" description with it, because that would have to be settled by case law (have any?) As I said before, I choose to follow the safer route and avoid being the test case.

    At any rate, what you state as fact is actually your opinion, as is mine, PS. Once again, I have to say that I think when you and others put forth your opinion as settled law when it is anything but that, you can mislead some newer folks who'll just trust what you say. And it's for that reason that I take the counter position. Not (just) because I like to be argumentative , but also to provoke folks to consider all sides of the issue, and not just depend on someone's potentially faulty opinion.

    ~ Boyd
    Boyd -

    I used purple simply as an adjective to describe the gun, nothing more.

    I appreciate your stance and don't take it as being argumentative. I can tell you that during my time in LE, I have seen this case in court before and I can state without hesitation that "such" refers to "concealed" in this statute. I dont have specific case laws by name to cite, but I do recall the facts of the cases perfectly.

    As I stated earlier, there is a gentleman who I believe has posted here before. Forgive me for not recalling his name. I met him earlier this year during a VCDL meeting where I first heard his story and read about it a second time either here or in a VCDL alert. Anyway, as I recall the story, he was openly carrying a revolver in the city of Richmond and stopped at some type of sidewalk cafe for a beer while waiting for a bus. He was detained by RPD and charged and when it went to court, it was determined that he had broken no law because he was openly carrying. I'm sure that others here familar with the story can chime in and validate this. Perhaps the gentleman himself will come forward and tell the story. Those of you with better search habits than I may be able to track down the story here.


    James Reynolds

    NRA Certified Firearms Instructor - Pistol, Shotgun, Home Firearms Safety, Refuse To Be A Victim
    Concealed Firearms Instructor for Virginia, Florida & Utah permits.
    NRA Certified Chief Range Safety Officer
    Sabre Red Pepper Spray Instructor
    Glock Certified Armorer
    Instructor Bio - http://proactiveshooters.com/about-us/

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    Moderator / Administrator Grapeshot's Avatar
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    chris in va wrote:
    The thing is, you can drive over to WV and carry concealed in an alcohol serving restaurant.
    Virginans should have that option and maybe we will after King Kaine is gone and hopefully forgotten.

    Yata hey
    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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