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Thread: Sec. 18.2-308(J1)

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    Regular Member virginiatuck's Avatar
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    There is a discussion about sec. 18.2-308(J1) in the OC in NoVA thread. I thought I'd move it here.

    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.


    Basically the question at hand is, what does "under the influence" mean? Can a CHP holder consume even one sip of alcohol (or even one 16 oz. drink) and later, outside the premises of the restaurant where said alcohol was consumed, lawfully conceal a handgun in a public place? In the example being discussed in the aforementioned thread: The person keeps a loaded handgun in their vehicle, goes to a restaurant, consumes a small amount of alcohol, leaves shortly thereafter, and on his way home is pulled over by the police for a burnt out tail light or something minor like that. The person believes that they could lose their CHP, even though they're not even at risk of a DWI, because they have a loaded handgun in the vehicle and have consumed a small amount of alcohol earlier that evening. I disagree with them.

    I'm not a lawyer; it'd be nice if someone who better knows the law could clear this up.

    J1 provides examples of what would constitute "under the influence" for the purposes of J1. Those include offenses related to the operation of a motor vehicle while intoxicated and public intoxication. The offenses related to operation of a motor vehicle all point back to section 18.2-266. Section 18.2-269 defines presumptions of whether a person is under the influence for prosecution of some offenses, such as 18.2-266. Furthermore, as I understand, if a word or phrase is not defined specifically in the section in question, but it is defined elsewhere, then that definition would be used. In other words, a word or phrase should have the same meaning throughout the code of Virginia, unless specifically defined otherwise within the title/section. In the case of "under the influence" there are not any contradicting uses or definitions. Some are just more specific than others.

    This being opencarry.org, though, the real answer to all of this is obviously to openly carry; then J1 doesn't even apply. Still, I'm curious.


    http://leg1.state.va.us/cgi-bin/legp...0+cod+18.2-269

    § 18.2-269. Presumptions from alcohol or drug content of blood.
    A. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 18.2-266, or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused's blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
    (1) If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused's blood or 0.05 grams or less per 210 liters of the accused's breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
    (2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused's blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused's breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
    (3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused's blood or 0.08 grams or more per 210 liters of the accused's breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or
    (4) If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.


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    Campaign Veteran skidmark's Avatar
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    As all of your citations to 18.2-269 apply to motor vehicles, I fail to see how any of it is applicable.

    We've hashed this around before, and the final answer still seems to be that there is neither statute nor casae law addressing the issue. Using 18.2-269 as a guide to interpreting the issue of carrying a handgun/firearm while "under the influence" may or may not lead to the interpretation you most desire. Further, there is a fairly real danger that having someone be the test casae may lead to the introduction of legislation to resolve the matter - and we are all aware of how that usually turns out.

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    Newbie W.E.G.'s Avatar
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    Two cases that deal with what constitutes "intoxication."

    Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614 (1954)
    Rodgers v. Commonwealth, 197 Va. 527, 90 S.E.2d 257 (1955)

    "Any person who has drunk enough alcoholic beverages to so affect his manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation, shall be deemed to be intoxicated."

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    "public intoxication" is not hard to be convicted of - does not even require BAC - not sure why there is any question that J1 is a potential problem for anyone who drinks any alcohol - remember the Fairfax restaurant raids in Christmas of 2002?

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    If a cop thinks you're "under the influence", and has an objective basis for thinking so, then you're subject to arrest for being drunk in public or "under the influence" while carrying a firearm. You'll be released from jail the following day ("We found it necessary, your honor, to keep him locked up overnight for his own safety."), released on bond and you'll get to have a trial, where you'll probably be found not guilty after having paid someone like me a couple thousand bucks to show up with you in the GDC. I drink iced tea and water while I'm in restaurants, myself.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

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    Regular Member ProShooter's Avatar
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    Mike wrote:
    "public intoxication" is not hard to be convicted of - does not even require BAC - not sure why there is any question that J1 is a potential problem for anyone who drinks any alcohol - remember the Fairfax restaurant raids in Christmas of 2002?
    +1

    All that is required for a DIP is the officer's perception, based on his training and experience, that you have been drinking. The odor of an alcoholic beverage on your breath, slurred speach, glassy eyes/appearance, unsteady gait, etc.

    Any amount of alcohol you ingest has some degree of impairment attached to it, thus placing you under its influence. If you need to drink, leave the gun home.
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    ProShooter wrote:
    Mike wrote:
    "public intoxication" is not hard to be convicted of - does not even require BAC - not sure why there is any question that J1 is a potential problem for anyone who drinks any alcohol - remember the Fairfax restaurant raids in Christmas of 2002?
    +1

    All that is required for a DIP is the officer's perception, based on his training and experience, that you have been drinking. The odor of an alcoholic beverage on your breath, slurred speach, glassy eyes/appearance, unsteady gait, etc.

    Any amount of alcohol you ingest has some degree of impairment attached to it, thus placing you under its influence. If you need to drink, leave the gun home.

    You can also take allergy medicine and be intoxicated, or use spray paint in your garage and become intoxicated, hell I remember this one chic I dated in highschool, f*cking knock out gorgeous, I became all goofy and "intoxicated" every timeI was around her.

    Being under the influence does not automatically make someone more or less responsible, it comes down to each and every individual. You know personal reponsibility.

    A while back some friends of mine had come over to shoot on my range. One of my friends had drank a few beers, maybe 3 or 4, my other friend was waiting until after they shot to drink a few.

    When my drinking friend was questioned about his drinking and then wanting to shoot his pistol, he said something that made perfect sense... he said "If I'm at home, and somebody breaks in, there is a good chance, I will have already drank a few beers, shouldn't I practice shooting after I had been drinking, since there is a good chance I will have been, if somebody kicks in my door"? Made sense to me then and it still does.


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    "I detected a strong odor of an alcoholic beverage about his person, Your Honor."
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    user wrote:
    "I detected a strong odor of an alcoholic beverage about his person, Your Honor."
    My girl got pissed and threw a drink in my face Your honor:P

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    Pagan wrote:
    user wrote:
    "I detected a strong odor of an alcoholic beverage about his person, Your Honor."
    My girl got pissed and threw a drink in my face Your honor:P
    Heard that defense before (and have been a victim of that before ha) .... so now it's articulated as "I detected a strong odor of an alcoholic beverage emitting from his/her mouth. The odor grew more intense as they spoke" (only if that's the case...which it usually is).



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    Pagan wrote:
    ProShooter wrote:
    Mike wrote:
    "public intoxication" is not hard to be convicted of - does not even require BAC - not sure why there is any question that J1 is a potential problem for anyone who drinks any alcohol - remember the Fairfax restaurant raids in Christmas of 2002?
    +1

    All that is required for a DIP is the officer's perception, based on his training and experience, that you have been drinking. The odor of an alcoholic beverage on your breath, slurred speach, glassy eyes/appearance, unsteady gait, etc.

    Any amount of alcohol you ingest has some degree of impairment attached to it, thus placing you under its influence. If you need to drink, leave the gun home.

    You can also take allergy medicine and be intoxicated, or use spray paint in your garage and become intoxicated, hell I remember this one chic I dated in highschool, f*cking knock out gorgeous, I became all goofy and "intoxicated" every timeI was around her.

    Being under the influence does not automatically make someone more or less responsible, it comes down to each and every individual. You know personal reponsibility.

    A while back some friends of mine had come over to shoot on my range. One of my friends had drank a few beers, maybe 3 or 4, my other friend was waiting until after they shot to drink a few.

    When my drinking friend was questioned about his drinking and then wanting to shoot his pistol, he said something that made perfect sense... he said "If I'm at home, and somebody breaks in, there is a good chance, I will have already drank a few beers, shouldn't I practice shooting after I had been drinking, since there is a good chance I will have been, if somebody kicks in my door"? Made sense to me then and it still does.
    I am pro-shooting, and I am pro-drinking, but i don't believe those two should ever mix. So your friend believes there is a good chance that someone will break into his house? And if someone breaks in, that he also believes he will already be intoxicated? So your friend is a raging alcoholic that lives in southeast D.C. with no door locks? Come on. He needs to be more responsible. Your friend gives a bad reputation for responsible gun owners.

    Should I practice driving drunk because I may encounter an emergency when I'm drinking where I need to drive myself or someone else to the emergency room? Of course not.

    Keep in mind that if you are drinking and shoot someone, your credibility will be questioned. That's a sad fact of life. Even if you are 100 percent correct, just the fact that you were drinking, it will come into question. Shooting when drinking is just asking for someone to be injured or killed, and someone to end up sued and imprisoned. Be responsible, it's not difficult.

    P.S. I have seen pretty girls before, and can remember being 16, but I can't remember being "intoxicated" when seeing a girl. Wish I had the same girls you saw at my high school. Intoxicated in VA 18.2-388 refers to an intoxicant as alcohol, drug or drug of whatever nature, so I don't believe getting enticed by a girl would fall into this provision.

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    Regular Member virginiatuck's Avatar
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    NovaCop10 wrote:
    Pagan wrote:
    ProShooter wrote:
    Mike wrote:
    "public intoxication" is not hard to be convicted of - does not even require BAC - not sure why there is any question that J1 is a potential problem for anyone who drinks any alcohol - remember the Fairfax restaurant raids in Christmas of 2002?
    +1

    All that is required for a DIP is the officer's perception, based on his training and experience, that you have been drinking. The odor of an alcoholic beverage on your breath, slurred speach, glassy eyes/appearance, unsteady gait, etc.

    Any amount of alcohol you ingest has some degree of impairment attached to it, thus placing you under its influence. If you need to drink, leave the gun home.

    You can also take allergy medicine and be intoxicated, or use spray paint in your garage and become intoxicated, hell I remember this one chic I dated in highschool, f*cking knock out gorgeous, I became all goofy and "intoxicated" every timeI was around her.

    Being under the influence does not automatically make someone more or less responsible, it comes down to each and every individual. You know personal reponsibility.

    A while back some friends of mine had come over to shoot on my range. One of my friends had drank a few beers, maybe 3 or 4, my other friend was waiting until after they shot to drink a few.

    When my drinking friend was questioned about his drinking and then wanting to shoot his pistol, he said something that made perfect sense... he said "If I'm at home, and somebody breaks in, there is a good chance, I will have already drank a few beers, shouldn't I practice shooting after I had been drinking, since there is a good chance I will have been, if somebody kicks in my door"? Made sense to me then and it still does.
    I am pro-shooting, and I am pro-drinking, but i don't believe those two should ever mix. So your friend believes there is a good chance that someone will break into his house? And if someone breaks in, that he also believes he will already be intoxicated? So your friend is a raging alcoholic that lives in southeast D.C. with no door locks? Come on. He needs to be more responsible. Your friend gives a bad reputation for responsible gun owners.

    Should I practice driving drunk because I may encounter an emergency when I'm drinking where I need to drive myself or someone else to the emergency room? Of course not.

    Keep in mind that if you are drinking and shoot someone, your credibility will be questioned. That's a sad fact of life. Even if you are 100 percent correct, just the fact that you were drinking, it will come into question. Shooting when drinking is just asking for someone to be injured or killed, and someone to end up sued and imprisoned. Be responsible, it's not difficult.

    P.S. I have seen pretty girls before, and can remember being 16, but I can't remember being "intoxicated" when seeing a girl. Wish I had the same girls you saw at my high school. Intoxicated in VA 18.2-388 refers to an intoxicant as alcohol, drug or drug of whatever nature, so I don't believe getting enticed by a girl would fall into this provision.
    A certain nearby state's Liquor Control/Enforcement trains its officers to shoot while drunk; drunk well beyond their normal and expected level of intoxication while working. [1] So much for "[n]ever." It's also none of anyone's business if a guy wants to drink "a few beers" in his own home and keep a ready firearm; no matter how often he does so.Neither of those things are illegal and are not inherently harmful to anyone but himself.[2]

    I don't think anyone is saying that having any amount of alcohol in one's system won't affect their judgment, accuracy, demeanor, tolerance (no pun intended), or impair one's ability to recognize a veritable threat. However, it is possible for any person to perceive an imaginary threat as a real one, whether sober or "under the influence" or "intoxicated." It is also possible for any person to recognize a veritable threat, whether sober or "under the influence" or "intoxicated." Recognize that carrying a firearm is not the same as using a firearm. Sometimes I think peoples' attitudes around here toward alcohol are akin to Reefer Madness.[3]

    Do you not always have the responsibility and the right to defend your life and limb from an unjustified aggressor? Some of us here are simply pointing out the hypocrisy of people who adamantly argue against "gun free zones" everywhere in our society; yet promote the creation of a "gun free zone" around every person who has consumed any amount of alcohol. It seems to me that those people are either OK with "gun free zones" or they are proponents of prohibition. 61.2% of U.S. adults are current drinkers.[4]

    NovaCop10, this reply isn't directed entirely at your post. Parts of it are, but the rest of this, especially things that are in line with what you already posted, are not directed at you. I don't disagree that one's credibility would (and should) be called into question... I'm just trying to make the point that one should not be precluded in-credible.

    [1] Anonymous source
    [2] § 18.2-308(B)

    [3] http://en.wikipedia.org/wiki/Reefer_Madness
    [4] Health Behaviors of Adults, United States, 2005-07, Chapter 3





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