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Thread: Virginia: Drinking at an "Establishment" while open carrying: Legal?

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    Virginia: Drinking at an "Establishment" while open carrying: Legal?

    I want to make certain that I am not being mislead here. In an article published in a few papers here in Virginia, there's a note that, "People who legally carry firearms openly already may enter restaurants that serve alcohol and may drink." Having searched the Virginia Code, I am finding no sign that this either correct or incorrect. I know that while one is concealed carrying, drinking at a restaurant is illegal.

    So, is it legal to drink while open carrying at a restaurant?

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by jpatch View Post
    I want to make certain that I am not being mislead here. In an article published in a few papers here in Virginia, there's a note that, "People who legally carry firearms openly already may enter restaurants that serve alcohol and may drink." Having searched the Virginia Code, I am finding no sign that this either correct or incorrect. I know that while one is concealed carrying, drinking at a restaurant is illegal.

    So, is it legal to drink while open carrying at a restaurant?
    Most definitely is although most here would discourage it as bad form in most instances.

    The reason you cannot locate anything in the Code of Virginia is that there is nothing there - a total and complete absence. Laws/statutes general forbid or penalize a specific act and the General Assembly has chosen throughout the history of Virginia to leave this right unrestricted. The absence of a law against OC is what makes it legal.

    Where is "here in Virginia?"
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    Regular Member simmonsjoe's Avatar
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    Yes. Please update your profile with at least state, preferably city/county. It will help us answer questions.

    Even though it is legal to consume alcohol during OC, it is illegal to be in possession of a firearm while intoxicated.

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    City

    City of Lynchburg, namely. Updating profile to that end.

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    Activist Member Wolf_shadow's Avatar
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    Welcome to the forum. As Grapeshot wrote it's legal to drink while open carrying although most here don't recomend or approve of it.

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    Regular Member t33j's Avatar
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    Educated a gun store employee on this topic yesterday.
    Sic Semper Tyrannis

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    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by t33j View Post
    Educated a gun store employee on this topic yesterday.
    Good job. It's amazing how much incorrect info I hear gun store employees handing out.

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    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by simmonsjoe View Post
    Good job. It's amazing how much incorrect info I hear gun store employees handing out.
    Most of them never heard of VCDL either (besides Nova Arms)

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    Campaign Veteran Glock9mmOldStyle's Avatar
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    Quote Originally Posted by jpatch View Post
    I want to make certain that I am not being mislead here. In an article published in a few papers here in Virginia, there's a note that, "People who legally carry firearms openly already may enter restaurants that serve alcohol and may drink." Having searched the Virginia Code, I am finding no sign that this either correct or incorrect. I know that while one is concealed carrying, drinking at a restaurant is illegal.

    So, is it legal to drink while open carrying at a restaurant?
    Be very very careful. Here in MI the law is almost identical, you can't CC but you can OC in a bar. Also you can drink..but here's the KICKER if you do you open yourself up to a much lower limit for carrying while intoxicated. In MI the DUI limit is .07 & under for carrying a pistol it is .02 & under. So depending on you body chemistry a half of a beer could land you in deep trouble. I would really check your State law closely in regards to "carrying while under the influence". Then ask yourself, is it worth the risk?

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    Quote Originally Posted by Glock9mmOldStyle View Post
    Be very very careful. Here in MI the law is almost identical, you can't CC but you can OC in a bar. Also you can drink..but here's the KICKER if you do you open yourself up to a much lower limit for carrying while intoxicated. In MI the DUI limit is .07 & under for carrying a pistol it is .02 & under. So depending on you body chemistry a half of a beer could land you in deep trouble. I would really check your State law closely in regards to "carrying while under the influence". Then ask yourself, is it worth the risk?
    Here, there's no definite BAC that makes you intoxicated while carrying a firearm, at least as far as I could tell when researching this very topic a while back. It's entirely up to the officer on whether or not you're intoxicated. Prudence would tell you that a sip of beer is enough to land you in jail, depending on your attitude and the officer's mood/attitude/personal beliefs if you encounter one while drinking and OC.

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    Regular Member wylde007's Avatar
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    Quote Originally Posted by Wangmuf View Post
    Here, there's no definite BAC that makes you intoxicated while carrying a firearm, at least as far as I could tell when researching this very topic a while back.
    That still would only be a DiP charge and not a firearms charge.
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    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by wylde007 View Post
    That still would only be a DiP charge and not a firearms charge.
    I found that interesting, so looked it up to be sure.

    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.

    So it is actually a secondary charge.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    That still would only be a DiP charge and not a firearms charge.

    Quote Originally Posted by simmonsjoe View Post
    I found that interesting, so looked it up to be sure.

    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.

    So it is actually a secondary charge.
    I think you're getting confused.

    The subject of this thread is drinking while openly carrying. 18.2-308 does not apply to open carry. I'm not sure what you mean by "a secondary charge". There are secondary offenses, such as the seatbelt law, which means you can't be stopped or ticketed for just that violation. I believe the section of code you quote cites a list of other alcohol-related crimes, which upon your conviction, may be taken to mean that you were also guilty of violating J1, if you had a concealed weapon. It's basically saying if you were found guilty of being drunk for any of those crimes, and you were carrying concealed at the same time, then you were also drunk for that.

    As with open carry in general, the code appears to be silent on open carry while intoxicated. But since it is against the law to be intoxicated in public, then by definition, it is also against the law to be intoxicated in public, while open carrying... ETA: and as wylde notes, there would not appear to be any firearms-specific charges to apply.

    IANAL, this is mostly just how I understand it.

    TFred
    Last edited by TFred; 07-05-2010 at 01:40 AM.

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    Regular Member wylde007's Avatar
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    Quote Originally Posted by TFred View Post
    The subject of this thread is drinking while openly carrying.
    The subject of this web site is Open Carry.

    But, you are correct. 18.2-308 is conceal-carry relevant ONLY.

    There are provisions regarding "habitual" drunkenness and substance abuse, but they are also only peripherally relevant.
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    Regular Member TFred's Avatar
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    Quote Originally Posted by wylde007 View Post
    The subject of this web site is Open Carry.

    But, you are correct. 18.2-308 is conceal-carry relevant ONLY.

    There are provisions regarding "habitual" drunkenness and substance abuse, but they are also only peripherally relevant.
    The only provisions in 18.2-308 concern the qualifications for, or more accurately, the disqualifications from obtaining a CHP. There are other statutes regarding firearms possession by someone convicted of drug offenses ( 18.2-308.1:5), and also regarding firearms possession by someone in possession of "certain controlled substances" ( 18.2-308.4). But according to the search engine on the LIS Code of Virginia site, there is only one appearance of both words "habitual" and "firearm" in the code, and that is in the CHP statute.

    TFred

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    Regular Member simmonsjoe's Avatar
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    Quote Originally Posted by TFred View Post
    I think you're getting confused.

    The subject of this thread is drinking while openly carrying. 18.2-308 does not apply to open carry. I'm not sure what you mean by "a secondary charge". There are secondary offenses, such as the seatbelt law, which means you can't be stopped or ticketed for just that violation. I believe the section of code you quote cites a list of other alcohol-related crimes, which upon your conviction, may be taken to mean that you were also guilty of violating J1, if you had a concealed weapon. It's basically saying if you were found guilty of being drunk for any of those crimes, and you were carrying concealed at the same time, then you were also drunk for that.

    As with open carry in general, the code appears to be silent on open carry while intoxicated. But since it is against the law to be intoxicated in public, then by definition, it is also against the law to be intoxicated in public, while open carrying... ETA: and as wylde notes, there would not appear to be any firearms-specific charges to apply.

    IANAL, this is mostly just how I understand it.

    TFred
    Your correct, my bad Wylde007!

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    Firstly, I want to apologize for ressurrecting this thread from the dead. That being said I searched and found this to be most useful. I am somewhat new to open carry and I'm trying to educate myself as much as I can on the laws.

    I'll get straight to the point. If I oc into a resturaunt and order a drink or two is this still legal? Obviously, can't get intoxicated but just curious if I end up having a beer or two if that's actually allowed.

    I also have another question concerning oc in a car that has tinted windows but i'll post that in the appropriate section


    Thanks for the help and glad to have joined this site.


    -Brad

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by Evader View Post
    Firstly, I want to apologize for ressurrecting this thread from the dead. That being said I searched and found this to be most useful. I am somewhat new to open carry and I'm trying to educate myself as much as I can on the laws.

    I'll get straight to the point. If I oc into a resturaunt and order a drink or two is this still legal? Obviously, can't get intoxicated but just curious if I end up having a beer or two if that's actually allowed.

    I also have another question concerning oc in a car that has tinted windows but i'll post that in the appropriate section


    Thanks for the help and glad to have joined this site.


    -Brad
    Consider if you will - Code of Virginia 18.2-308

    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.

    http://rvanews.com/news/house-bill-5...taurants/29518

    While this refers to CCing only and that OC is not addressed, it is considered bad form by many.
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    Regular Member speed41ae's Avatar
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    One of my personal rules is that once I start doing anything that could impair my judgement (Alcohol, Prescription Drugs ...), I do not touch a firearm.

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    Regular Member Marco's Avatar
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    Quote Originally Posted by ed View Post
    Most of them never heard of VCDL either (besides Nova Arms)
    Guns and Ammo Warehouse in Manassas has at least one employee that is an active VCDL member.
    Loudon guns has at least one employee that is a VCDL member.
    Southern Gun world in Chesterfiled has at least one VCDL member as an employee.
    IIRC, at one time Blue Ridge Arsenal in Chantilly offered VCDL members discounts.
    Immortal arms in Culpeper the owner is a VCDL member and attended lobby day.
    I believe the Baily's Crossroads Dick's has at least one extremely vocal VCDL member.
    The folks over at Woodbrook in Charlottesville always have VCDL pamphlets adn have no issue with me posting C'ville area meeting info.

    I would agree most gun shop owners/mgrs and employees either aren't VCDL members because they don't care enough about 2A rights or they don't know about VCDL. My guess is the prior.
    Same goes for a slew of CHP instructors, meet a few at the Fisherville and Harrisonburg gunshows.
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    Regular Member ProShooter's Avatar
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    Quote Originally Posted by Agent19 View Post
    I would agree most gun shop owners/mgrs and employees either aren't VCDL members because they don't care enough about 2A rights or they don't know about VCDL. My guess is the prior.
    Same goes for a slew of CHP instructors, meet a few at the Fisherville and Harrisonburg gunshows.

    Sadly, this is true.

    I try to make sure that every one of my students gets a VCDL brochure/app put into their hands in every class. I can't say that we've added to the numbers, but we try.
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    Regular Member ryan7068's Avatar
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    Carrying and drinking

    I agree the safest way to go is definitely to not handle a firearm if your going to drink anything. I also subscribe to people being held accountable for their actions, intoxicated or not. I would also say that most vendors would likely decline to serve you if they noticed you carrying. I have however a few people open carry and being served at a primarily biker bar....that was interesting

    I do on seldom occassions have one, two, three beers throughout a saturday afternoon if workin around the house or at a friends providing they have no problem. If I know I am going to be making a evening out of it or im looking to get my "college kid" on, my firearm is locked up plain and simple. Again, I don't expect anyone to neccessarily agree with this method, I am confident in it's application to me and have never been concerned.
    Last edited by ryan7068; 05-15-2012 at 11:44 PM.
    "Yes, I am carrying a loaded firearm. Why aren't you? "

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    Moderator / Administrator Grapeshot's Avatar
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    There is a decided difference between indulging at home and going to a restaurant - in public view. Not anything illegal, just not considered good form by most here. YMMV

    Not judging and not criticizing those that might have a wee sip - just reporting that perceptions are what perceptions are.
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    Regular Member ryan7068's Avatar
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    Good call Grapeshot. I kinda strayed off topic. Quite true though, it can definitly make you look bad especially to those who are already are concerned that you are carrying. Appearing wreckless as well isn't gonna instill confidence.
    "Yes, I am carrying a loaded firearm. Why aren't you? "

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    Regular Member wylde007's Avatar
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    Quote Originally Posted by ryan7068 View Post
    I would also say that most vendors would likely decline to serve you if they noticed you carrying.
    I would have to categorically say that you are mistaken.

    The only places who would refuse to serve you alcohol are the ones who would refuse you service in its entirety.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

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