Thread: 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
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.
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.
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...
This Case will Hindge on Colorado Case 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.
also, tell your friend good luck getting his gun back
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
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!