virginiatuck
Regular Member
imported post
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/legp504.exe?000+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.
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/legp504.exe?000+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.
