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Thread: A few legal questions.

  1. #1
    Regular Member ThatOneChick's Avatar
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    Hi, first time poster, long time lurker.

    To begin, I OC a 9mm. I was OCing in a restaurant when a couple gentlemen asked if they could join me and a friend. I said "Yes." and they sat with us. I smelled alcohol and made the comment "Boy, you guys sure have been partying." One gentleman, I later found out was an off-duty police officer, stated "Yes, and we did some meth." I'm a zero-tolerance person and asked them to leave the table.

    Having their booth next to ours, I heard some angry words from the off-duty LEO about me. He stood up, slammed his badge on my table, and sat down next to me uninvited.

    I had screamed at my friend to move and jumped over the table. In the process, I placed my hand over my holster to hold it steady while I flew over the table. It was an open palm and, my holster is a snap holster.

    After I had gotten clear of the table, I removed my hand from my holster and it never went near it again. I had made it clear across the restaurant and out of view from the men who were being told they needed to leave from an employee.

    The off-duty LEO had reached for his weapon in a manner which implied he was getting ready to draw it while the employee told him the police had been called. The whole time, the LEO was screaming "THE POLICE ARE ALREADY HERE!"

    The LEO has thus been charged with disorderly conduct.

    My questions:

    Was the LEO brandishing? Utah Code Section 76-10-506 reads
    Every person, except those persons described in Section 76-10-503, who, not in necessary self defense in the presence of two or more persons, draws or exhibits any dangerous weapon in an angry and threatening manner or unlawfully uses the same in any fight or quarrel is guilty of a class A misdemeanor.
    ( http://www.le.utah.gov/UtahCode/getC...code=76-10-506 )

    Would the situation constitute "In an angry and threatening manner"?

    Are LEOs exempt from carrying while under the influence? The BCI website states
    It is unlawful to carry a firearm while under the influence of alcohol or a controlled substance with or without a permit.
    ( http://publicsafety.utah.gov/bci/FirearmLaws.html )

    It is illegal to be intoxicated and in possession of a firearm. The level of intoxication that is considered illegal is the same standard as when driving a car. (.08 B.A.C.)
    ( http://publicsafety.utah.gov/bci/FAQ.html#7 )

    I was informed the LEO had been tested for BAC over an hour after the incident from his own department. I'm unaware of whether it was a breathalyzer or other means of testing, as well as the percentage but, I was told he did have alcohol in his system. I'm also unaware if he was tested for illegal substances including meth.

    Utah Code Section 76-10-523 states, paraphrasing, that police officers are exempt from weapons laws. ( http://www.le.utah.gov/UtahCode/getC...code=76-10-523 ) Does this mean the LEO could be intoxicated by legal and illegal substances and still carry a weapon legally?

    I understand "Disorderly conduct" as a catch-all type of law in Utah. ( http://www.le.utah.gov/UtahCode/getC...?code=76-9-102 ) Would the assumed brandishing and under the influence infractions fall under the charge of disorderly conduct?

    My final question: I often open-handedly block my weapon when people get too close to me and bump into me or when I'm about to bump into objects such as shelves in stores and what not. Would this constitute brandishing? Or some other illegal act? I understand how it could be misconstrued but, by definition, am I in any way breaking any laws?

    Thank you for any and all help. I know I have a lot to ask and appreciate any input.
    It is a mistake to think you can solve any major problems just with potatoes. --Douglas Adams

    Unless cited, any comments are my personal opinion and may not hold any weight or be correct.

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    Regular Member ThatOneChick's Avatar
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    Just to add on to my previous post about the BAC and what have you.

    Regardless of what his BAC was at the time of testing, Utah Code Section 76-10-528.
    Carrying a dangerous weapon while under influence of alcohol or drugs unlawful. (1) Any person who carries a dangerous weapon while under the influence of alcohol or a controlled substance as defined in Section 58-37-2 is guilty of a class B misdemeanor. Under the influence means the same level of influence or blood or breath alcohol concentration as provided in Subsections 41-6a-502(1)(a) through(c).
    ( http://www.le.utah.gov/UtahCode/getC...code=76-10-528 )

    Utah Code Section 41-6a-502.
    Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration. ..snip.. (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or ..snip..
    ( http://www.le.utah.gov/UtahCode/getC...code=41-6a-502 )

    If the LEO had a designated driver, would that be admitting he was "incapable of safely operating a vehicle"?

    I know I've brought up a lot of points. I'm just thinking aloud and hoping to get some feedback.
    It is a mistake to think you can solve any major problems just with potatoes. --Douglas Adams

    Unless cited, any comments are my personal opinion and may not hold any weight or be correct.

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    State Researcher Kevin Jensen's Avatar
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    Welcome to OCDO! :celebrate

    Unfortunately, you are correct that 76-10-523 exempts peace officers from weapon laws, including 76-10-506 and 76-10-528.

    Here is a quote from the Lib Trib where an officer may have been intoxicated, and actually shot someone.

    http://www.sltrib.com/news/ci_13683614
    Mortensen said Chacon went to the bar with his family and was there for "several hours" before the fight. Mortensen does not know how much Chacon drank or whether a sobriety test was administered.

    Mortensen said he is still waiting to see video that may have recorded the fight and shooting.

    "Giving [a police officer] the judgment to use a gun or not when he might not be able to drive a car is ridiculous and does violate well-established police practices," Mortensen said.

    Salt Lake County deputies are required to carry their weapons or have them "reasonably accessible" at all times. Deputies don't set their guns aside when they drink alcohol, but are not supposed to use them if they are impaired. That can change, though, if there is an imminent threat and they need to respond, Hutson said.
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

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    State Researcher Kevin Jensen's Avatar
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    ThatOneChick wrote:
    I understand "Disorderly conduct" as a catch-all type of law in Utah. ( http://www.le.utah.gov/UtahCode/getC...?code=76-9-102 ) Would the assumed brandishing and under the influence infractions fall under the charge of disorderly conduct?
    Possibly. Since cops are exempt from weapon laws, he could not be charged with threatening or carrying while intoxicated.

    The thing that sucks is that it sounds like this LEO needs a stiffer penalty that what he will be receiving. Disorderly conduct in only an infraction.

    Do you happen to know the officer's name, or department he works for?
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

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    Regular Member ThatOneChick's Avatar
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    SGT Jensen wrote:
    Possibly. Since cops are exempt from weapon laws, he could not be charged with threatening or carrying while intoxicated.

    The thing that sucks is that it sounds like this LEO needs a stiffer penalty that what he will be receiving. Disorderly conduct in only an infraction.

    Do you happen to know the officer's name, or department he works for?
    Hey Jensen, bumped into you over at another forum, *Ahem*, and you directed me here awhile back. Glad to see you.

    I spoke with the victim's service people who are handling the case earlier today and touched base with them about all the questions I've brought up here.

    Roughly, since at the time of his testing his BAC was not considered the legal limit (He blew a .02 over an hour after the incident), they wouldn't charge him with carrying while intoxicated. So, the statute (Utah Code Section 41-6a-502b) I brought thinking it was a loophole for the lack of BAC wasn't in consideration. However, they informed me that if he had blown a .08 or higher that they could've charged him with the crime.

    Utah Code Section 76-10-506 regarding brandishing. They explained that just reaching for the gun, regardless if he was screaming at everyone or not, is not considered brandishing.

    Yes, I know the officer's name and, yes I know which department he works for. Arraignment is coming up so, we'll see what happens with that.

    Unfortunately, the disorderly conduct was lowered from a class C misdemeanor to an infraction.
    It is a mistake to think you can solve any major problems just with potatoes. --Douglas Adams

    Unless cited, any comments are my personal opinion and may not hold any weight or be correct.

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    Regular Member LovesHisXD45's Avatar
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    ThatOneChick wrote:
    SGT Jensen wrote:
    Possibly. Since cops are exempt from weapon laws, he could not be charged with threatening or carrying while intoxicated.

    The thing that sucks is that it sounds like this LEO needs a stiffer penalty that what he will be receiving. Disorderly conduct in only an infraction.

    Do you happen to know the officer's name, or department he works for?
    Hey Jensen, bumped into you over at another forum, *Ahem*, and you directed me here awhile back. Glad to see you.

    I spoke with the victim's service people who are handling the case earlier today and touched base with them about all the questions I've brought up here.

    Roughly, since at the time of his testing his BAC was not considered the legal limit (He blew a .02 over an hour after the incident), they wouldn't charge him with carrying while intoxicated. So, the statute (Utah Code Section 41-6a-502b) I brought thinking it was a loophole for the lack of BAC wasn't in consideration. However, they informed me that if he had blown a .08 or higher that they could've charged him with the crime.

    Utah Code Section 76-10-506 regarding brandishing. They explained that just reaching for the gun, regardless if he was screaming at everyone or not, is not considered brandishing.

    Yes, I know the officer's name and, yes I know which department he works for. Arraignment is coming up so, we'll see what happens with that.

    Unfortunately, the disorderly conduct was lowered from a class C misdemeanor to an infraction.
    76-1-601. Definitions.
    Unless otherwise provided, the following terms apply to this title:
    (1) "Act" means a voluntary bodily movement and includes speech.
    (2) "Actor" means a person whose criminal responsibility is in issue in a criminal action.
    (3) "Bodily injury" means physical pain, illness, or any impairment of physical condition.
    (4) "Conduct" means an act or omission.
    (5) "Dangerous weapon" means:
    (a) any item capable of causing death or serious bodily injury; or
    (b) a facsimile or representation of the item, if:
    (i) the actor's use or apparent intended use of the item leads the victim to reasonably believe the item is likely
    to cause death or serious bodily injury
    ; or
    (ii) the actor represents to the victim verbally or in any other manner that he is in control of such an item.


    ...Snip

    Yay, so we can yell at people and reach for our guns and not be charged? roflmao! What a crock. Too bad you didn't get him saying that on tape.

    Kevin
    If it isn't broke, then don't fix it, or you'll fix it until it's broke.

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    ThatOneChick wrote:
    SGT Jensen wrote:
    Possibly. Since cops are exempt from weapon laws, he could not be charged with threatening or carrying while intoxicated.

    The thing that sucks is that it sounds like this LEO needs a stiffer penalty that what he will be receiving. Disorderly conduct in only an infraction.

    Do you happen to know the officer's name, or department he works for?
    Hey Jensen, bumped into you over at another forum, *Ahem*, and you directed me here awhile back. Glad to see you.

    I spoke with the victim's service people who are handling the case earlier today and touched base with them about all the questions I've brought up here.

    Roughly, since at the time of his testing his BAC was not considered the legal limit (He blew a .02 over an hour after the incident), they wouldn't charge him with carrying while intoxicated. So, the statute (Utah Code Section 41-6a-502b) I brought thinking it was a loophole for the lack of BAC wasn't in consideration. However, they informed me that if he had blown a .08 or higher that they could've charged him with the crime.

    Utah Code Section 76-10-506 regarding brandishing. They explained that just reaching for the gun, regardless if he was screaming at everyone or not, is not considered brandishing.

    Yes, I know the officer's name and, yes I know which department he works for. Arraignment is coming up so, we'll see what happens with that.

    Unfortunately, the disorderly conduct was lowered from a class C misdemeanor to an infraction.
    What's a criminal "infraction" (as opposed to a traffic infraction)? I was unaware that there were lesser degrees of crime than misdemeanors.

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    State Researcher Kevin Jensen's Avatar
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    Wangmuf wrote:
    What's a criminal "infraction" (as opposed to a traffic infraction)? I was unaware that there were lesser degrees of crime than misdemeanors.
    Utah Code Title 76 Utah Criminal Code
    Chapter 3 Punishments
    Section 105 Infractions.

    76-3-105.
    Infractions.
    (1) Infractions are not classified.
    (2) Any offense which is an infraction within this code is expressly designated and any offense defined outside this code which is not designated as a felony or misdemeanor and for which no penalty is specified is an infraction.
    "An armed society is a polite society. Manners are good when one may have to back up his acts with his life." Robert A. Heinlein

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    Regular Member ThatOneChick's Avatar
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    LovesHisXD45 wrote:
    76-1-601. Definitions.
    Unless otherwise provided, the following terms apply to this title:
    (1) "Act" means a voluntary bodily movement and includes speech.
    (2) "Actor" means a person whose criminal responsibility is in issue in a criminal action.
    (3) "Bodily injury" means physical pain, illness, or any impairment of physical condition.
    (4) "Conduct" means an act or omission.
    (5) "Dangerous weapon" means:
    (a) any item capable of causing death or serious bodily injury; or
    (b) a facsimile or representation of the item, if:
    (i) the actor's use or apparent intended use of the item leads the victim to reasonably believe the item is likely
    to cause death or serious bodily injury
    ; or
    (ii) the actor represents to the victim verbally or in any other manner that he is in control of such an item.


    ...Snip

    Yay, so we can yell at people and reach for our guns and not be charged? roflmao! What a crock. Too bad you didn't get him saying that on tape.

    Kevin
    Yeah, I don't know. It makes no sense to me. The woman I was speaking with explained that, out of the cases that have been prosecuted as "brandishing", he pretty much would have had to pull his weapon for it to be considered under that term.

    I think the restaurant has security cameras and might have caught the incident on tape. I don't know if the PD/City that is filing charges has them.

    Speaking of, after the incident, the restaurant (Denny's in Layton), which is on mall property, has now enforced a "No weapons" policy. It's Layton Hills Mall enforcing it on all businesses on their property, I'm told.

    I've OCed in Denny's at the Harrison/Washington intersection up in Ogden and they're okay with it. IHOP in Layton next to the Denny's out there is okay with it, as well.
    It is a mistake to think you can solve any major problems just with potatoes. --Douglas Adams

    Unless cited, any comments are my personal opinion and may not hold any weight or be correct.

  10. #10
    Regular Member ThatOneChick's Avatar
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    SGT Jensen wrote:
    Utah Code Title 76 Utah Criminal Code
    Chapter 3 Punishments
    Section 105 Infractions.

    76-3-105.
    Infractions.
    (1) Infractions are not classified.
    (2) Any offense which is an infraction within this code is expressly designated and any offense defined outside this code which is not designated as a felony or misdemeanor and for which no penalty is specified is an infraction.
    I was told, the only difference between the disorderly conduct as a class C misdemeanor and an infraction is the jail time. Both hold an "up to $750 fine", the misdemeanor states "up to 90 days in jail" yet, the infraction does not.
    It is a mistake to think you can solve any major problems just with potatoes. --Douglas Adams

    Unless cited, any comments are my personal opinion and may not hold any weight or be correct.

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    I just really doubt that he only tested at .02. Sorry but I would not trust any department to test one of their own.

    When it comes to those in law enforcement, police, judges and select lawyers (and their wives). There is one set of rules. and then there are the ones we need to obey.

    I hate "more laws" but if cops or anyone elseare aloud to be in possession of a deadly weapon (car or firearm) while intoxicated then that loophole needs closed.

    Case in point:Thedrunk, MidvaleCop on Halloween that crashed into 3 parked carsshould have been booked into jail like anyone else...but no, he was picked up by someone and allowed to go home. Double standard...you bet! I'm just glad that bozo, idiot (in Blue)didn't kill someone.

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