Results 1 to 11 of 11

Thread: Prohibited use of weapon?

  1. #1
    Regular Member
    Join Date
    Jan 2011
    Location
    Colorado Springs
    Posts
    2

    Prohibited use of weapon?

    A friend of mine was charged with a DWAI and prohibited use of a weapon, even though the weapon was in the glove box in a blackhawk holster with no bullet in chamber. Blood alcohol level was below 0.05 after blood test. From what I know this is the statute regarding this issue:

    C.R.S. 18-12-106. Prohibited use of weapons.

    (1) A person commits a class 2 misdemeanor if:

    (a) He knowingly and unlawfully aims a firearm at another person; or

    (b) Recklessly or with criminal negligence he discharges a firearm or shoots a bow and arrow; or

    (c) He knowingly sets a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leaves it unattended by a competent person immediately present; or

    (d) The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or of a controlled substance, as defined in section 12-22-303 (7), C.R.S. Possession of a permit issued under section 18-12-105.1, as it existed prior to its repeal, or possession of a permit or a temporary emergency permit issued pursuant to part 2 of this article is no defense to a violation of this subsection (1).


    I'm wondering if they can still charge him with that violation? Does having the weapon in possession mean literally on him or close to him where he could reach it? Also since his BAC was below 0.05 the DWAI would be dropped, that makes it ok for the weapon to be there correct? Any insight will be appreciated. Thanks

  2. #2
    Regular Member
    Join Date
    Dec 2010
    Location
    Virginia
    Posts
    1,182
    Quote Originally Posted by Singoose View Post
    I'm wondering if they can still charge him with that violation?
    The police can, and usually do, charge people with as many things as they can.... the courts decide if the charge is accurate or not.

    Your friend needs a good lawyer..... good luck to him.

  3. #3
    Regular Member Gunslinger's Avatar
    Join Date
    Mar 2008
    Location
    Free, Colorado, USA
    Posts
    3,855
    If the DWI is dropped, so will the other charge. If not, they'll go after him with both. I was not aware that DWI was solely dependent on BAL. You're BAL can be zero while high on drugs--legal or illegal, and DWI will stick with other evidence. Colorado DWAI (driving while ability impaired) is similar to Colorado DUI, except that to be convicted of Colorado DWAI, the prosecution is only required to prove that the defendant was affected to the slightest degree, so that the person is less able than he or she ordinarily would have been to exercise clear judgment. DWAI is considered a lesser charge than DUI, but is also easier to prove.

  4. #4
    Regular Member PikesPeakMtnMan's Avatar
    Join Date
    Oct 2008
    Location
    Colorado Springs, Colorado, USA
    Posts
    426
    Quote Originally Posted by Gunslinger View Post
    If the DWI is dropped, so will the other charge. If not, they'll go after him with both. I was not aware that DWI was solely dependent on BAL. You're BAL can be zero while high on drugs--legal or illegal, and DWI will stick with other evidence. Colorado DWAI (driving while ability impaired) is similar to Colorado DUI, except that to be convicted of Colorado DWAI, the prosecution is only required to prove that the defendant was affected to the slightest degree, so that the person is less able than he or she ordinarily would have been to exercise clear judgment. DWAI is considered a lesser charge than DUI, but is also easier to prove.
    DWAI is a BAC of .06 to .07 and DUI is .08+....but if I'm reading the law right, Gunslinger is correct that other factors, aside from BAC, can be presented in court to prove that the driver was too impaired to drive (or not).






    42-4-1301. Driving under the influence - driving while impaired - driving with excessive alcoholic content - definitions - penalties - repeal.





    (6) (a) In any prosecution for DUI or DWAI, the defendant's BAC at the time of the commission of the alleged offense or within a reasonable time thereafter gives rise to the following presumptions or inferences:








    (I) If at such time the defendant's BAC was 0.05 or less, it shall be presumed that the defendant was not under the influence of alcohol and that the defendant's ability to operate a motor vehicle or vehicle was not impaired by the consumption of alcohol.








    (II) If at such time the defendant's BAC was in excess of 0.05 but less than 0.08, such fact gives rise to the permissible inference that the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.








    (III) If at such time the defendant's BAC was 0.08 or more, such fact gives rise to the permissible inference that the defendant was under the influence of alcohol.








    (b) The limitations of this subsection (6) shall not be construed as limiting the introduction, reception, or consideration of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of alcohol or whether or not the defendant's ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol.
    One day your life is going to flash before your eyes, make it worth watching.

  5. #5
    Regular Member
    Join Date
    Aug 2009
    Location
    Douglas County, CO.
    Posts
    83
    I was told that a BAC of .04 or greater while also possessing a gun is a misdemeanor and is chargable. Whether operating a car or sitting at home having a beers. Something happens and you end up on the outside of your home holding your gun and the cops show up and you blow .04 or greater, expect a trip to the pokey. As someone else mentioned, a good lawyer is in the cards. Pony up the $5,000 and get a good one...

  6. #6
    Regular Member
    Join Date
    Aug 2009
    Location
    , ,
    Posts
    1,605
    X:

    This Case will Hindge on Colorado Case Law.

    aadvark

  7. #7
    Campaign Veteran since9's Avatar
    Join Date
    Jan 2010
    Location
    Colorado Springs, Colorado, USA
    Posts
    6,787
    Quote Originally Posted by Singoose View Post
    C.R.S. 18-12-106. Prohibited use of weapons.

    ...

    (d) The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or of a controlled substance, as defined in section 12-22-303 (7), C.R.S.

    ...

    I'm wondering if they can still charge him with that violation? Does having the weapon in possession mean literally on him or close to him where he could reach it? Also since his BAC was below 0.05 the DWAI would be dropped, that makes it ok for the weapon to be there correct? Any insight will be appreciated. Thanks
    The C.R.S. you cited with respect to "under the influence of intoxicating liquor" is not specified in state law as are the BALs for DWAI and DWI. The law leaves it up to the LEOs as a judgement call as to whether or not your friend was "under the influence of intoxicating liquor." Thus, your friend could blow a 0.01 and still be cited under the law.

    On the other hand, a good lawyer should be able to argue the longevity of widely accepted BALs with respect to the safe operation of a motor vehicle (a dangerous endeavor, as proved by 30,000+ annual deaths a year), and sway the court to applying the same standard.

    As for the weapon, even though there wasn't a round in the chamber, it was still loaded, was it not? Had it been locked in the trunk, it could easily be argued that's not "possession" by way of federal interstate transport regulations. Locked in the glovebox, possibly, but it may be a stretch.

    Get the lawyer, and make it a good one.
    The First protects the Second, and the Second protects the First. Together, they protect the rest of our Bill of Rights and our United States Constitution, and help We the People protect ourselves in the spirit of our Declaration of Independence.

  8. #8
    Regular Member
    Join Date
    Aug 2009
    Location
    , ,
    Posts
    500
    also, tell your friend good luck getting his gun back

  9. #9
    Regular Member Gunslinger's Avatar
    Join Date
    Mar 2008
    Location
    Free, Colorado, USA
    Posts
    3,855
    Quote Originally Posted by PikesPeakMtnMan View Post
    DWAI is a BAC of .06 to .07 and DUI is .08+....but if I'm reading the law right, Gunslinger is correct that other factors, aside from BAC, can be presented in court to prove that the driver was too impaired to drive (or not).
    Exactly. Booze is not the sole criterion.

  10. #10
    Regular Member JamesB's Avatar
    Join Date
    Jan 2010
    Location
    Lakewood, Colorado, USA
    Posts
    703
    I have a "friend" who faced this before.
    yes, he paid a lawyer.
    yes, the charge was dropped.
    yes, he got the gun back.

    lawyer for the case was Doc Miller 720-422-6502

  11. #11
    Regular Member
    Join Date
    Jan 2011
    Location
    Colorado Springs
    Posts
    2

    Case dismissed

    Well it looks like the case was dismissed, being that the BAL was below 0.05 and the weapon, I believe, was in the glove box in a holster locked. He did get a lawyer and in the end everything worked out well. Lesson to my buddy, other's and myself, don't have alcohol in your system what so ever and have a weapon on you, or even be around a vehicle, because it is not worth it!

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •