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Thread: Guns and Alcohol, Revisited

  1. #1
    Accomplished Advocate user's Avatar
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    Question Guns and Alcohol, Revisited

    So, I'm participating in a "listserv" as a member of the Virginia Trial Lawyers' Association, and the subject of carrying firearms while intoxicated came up.

    One guy (David A. Mckelvey) said,
    You have never been allowed to consume alcohol and carry concealed. You have to remain sober while in the bar with a gun.
    To which I responded,
    Actually, you can't be a concealed handgun permittee and be intoxicated while carrying. § 18.2-308(J1). You can't even drink an alcoholic beverage at a restaurant if you're carrying a concealed handgun, unless you're a law enforcement officer (the "drunken cop" exception), according to paragraph J3. You also can't go hunting with firearms while intoxicated. § 18.2-285. But as long as you're not a concealed carry permittee or hunting at the time, it's perfectly legal to be drunk as a skunk while openly carrying. Of course, you may run afoul of § 18.2-388 ("Profane swearing and intoxication in public..."), but that's just a class four misdemeanor, and has nothing to
    do with carrying a dangerous instrument while in a state of impaired judgment.

    Legislative change suggestion: eliminate paragraphs J1 and J3 from 18.2-308 and create a new statute simply prohibiting the carrying of a loaded firearm while intoxicated. That simple. I don't care whether the person is in the
    privacy of his own home, no one should be hauling around a loaded gun while he's drunk. Period. Exactly the same problem as DUI. I do not see this as offensive to Article I Section 13 of the Va. Const. because the gist of the offense is intoxication/impaired judgment while in possession of an inherently dangerous instrumentality, not the carrying of the firearm per se. (Anyone who wants to be vigilant about self defense ought not be drunk, anyway.) I assume, also, that we all know that the definition of "intoxication" does not rely on a "legal limit" (which really only creates a
    presumption of intoxication).
    To which another member (Lloyd Snook) observed,
    If you introduced a bill like that, you'd get howls from the hunters who hunt with a hip flask. One Virginia legislator in 2006 fell out of his tree stand and broke a number of bones. Why this experienced hunter should have fallen out of the tree stand never got reported, but those in the know know. Kinda reminds me of Bill Fears, who, when he was the State Senator from Accomac, spoke against a bill that would have made it illegal to drive while carrying an open container of alcohol by arguing that "it would take all the fun out of drinking and driving."
    Question for you: what do y'all think of my "legislative proposal"?
    (One goal of my proposal is the simplification of 18.2-308.)
    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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    Regular Member wylde007's Avatar
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    Cool

    I propose the repeal of 18.2-308 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

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Regular Member TFred's Avatar
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    How would you protect against over-zealous enforcement by anti-gun LEOs who have been reported in threads here to wait until subject takes one sip, then arrests.

    TFred

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    Accomplished Advocate peter nap's Avatar
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    I think it's impossible to legislate everything User.
    Most people know I'm not a fan of drinking any amount while handling guns...but some do it quite responsibly.

    There was a law proposed in New York City that would make it unlawful for Cab Drivers to be rude.

    Some things need to be left t society to regulate rather than the legal system.

    I agree with Wylde. There are too many laws already.
    Last edited by peter nap; 04-28-2011 at 04:33 PM.

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    Regular Member Marco's Avatar
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    to simplify things why not just treat it the same as for vehicle have alegal limit akin to what is for vehicles and go from there.

    NV driving legal limit .08
    NV firearms legal limit is .10

    I think I got that right as I'm imn th emind of something else and can't confirm check now.

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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by user View Post
    So, I'm participating in a "listserv" as a member of the Virginia Trial Lawyers' Association, and the subject of carrying firearms while intoxicated came up.

    One guy (David A. Mckelvey) said,

    To which I responded,

    To which another member (Lloyd Snook) observed,

    Question for you: what do y'all think of my "legislative proposal"?
    (One goal of my proposal is the simplification of 18.2-308.)
    It makes sense to me that exceeding the BAC limits that would make you DUI could be applied to carrying. By doing so one could CC in a restaurant and have a glass or two of wine or a beer with dinner and still be 'sober' insofar as the law is concerned. Even so, it still might not be prudent to mix alcohol while carrying either CC or OC.

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    Regular Member VW_Factor's Avatar
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    While these are only my thoughts, and some may think them to be irresponsible..

    Cars are extremely deadly weapons as well, they are simply used differently. There are DUI laws that allow smaller amounts of alcohol to be consumed while still being able to technically be legal while operating a vehicle.. Why not the same for carrying?

    Really, what this gets too is a point where the individual cannot handle themselves responsibly while drinking any amount, and I am sure what people are worried about are those who are considered "angry drunks or drinkers". Does this need a law? Perhaps. However this is going to get into some situations where it may be applied in legal self defense matters, where it doesn't belong.

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    Regular Member Repeater's Avatar
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    Quote Originally Posted by user View Post
    Question for you: what do y'all think of my "legislative proposal"?
    (One goal of my proposal is the simplification of 18.2-308.)
    Okay with me.

    Just don't collaborate with either Morrissey or McEachin.

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    Regular Member The Wolfhound's Avatar
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    Not bad but.....

    It all boils down to how the word INTOXICATED is interpreted. One "adult beverage", especially with a meal, usually does not meet the criteria for intoxicated. "Sloppy drunk" can be universally recognized. Drunks with cars?=bad idea. Drunks with guns? still=bad idea. Your concept does push in the direction of individual liberty and individual responcibility, both of which I favor. Would you distinquish between LOADED or UNLOADED firearms? A drunk on the road with a car is a threat to society, similarly a drunk with a LOADED gun is a threat to society. An UNLOADED gun (don't go to the 4 rules, Damnit) is an inert object of no particular threat, regardless of the condition of its posessor.
    Last edited by The Wolfhound; 04-28-2011 at 05:35 PM. Reason: I seem incapable of typing the word "THE" in any manner except TEH without editing #$*$#$)#$)%*$_@

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    There are too many laws as is and they create too many way for anti-gunners to abuse gun owners.

    First, I'd be against any limitations on carry inside home whatsoever. It's your home, and it's your right. Why a homeowner has to chose between being able to defend himself or his family and having a few drinks with dinner? This is dumb.

    As for carrying outside of home, I'm fine with intoxication clause, but it needs more definition. The way it is in VA right now (i. e. presumptive intoxiation legal limit) creates yet another loophole to charge and sentence people based on nothing, but cops' and judges' personal feelings toward alcohol, firearms or combination of thereof.

    I like the NV way - if you are below the legal limit, you are free to go. It should be the same for cars and guns as far as you are out in public, with no limitations whatsoever when you are at home, hotel room, rented house, etc.

    As we always tell antigunners, murder is already highly illegal - what other laws do you want?

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    Regular Member VW_Factor's Avatar
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    Quote Originally Posted by The Wolfhound View Post
    Reason: I seem incapable of typing the word "THE" in any manner except TEH without editing #$*$#$)#$)%*$_@
    Teh is perfectly acceptable internet lingo sir.
    Last edited by VW_Factor; 04-28-2011 at 06:10 PM.

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    Accomplished Advocate user's Avatar
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    Virginia doesn't actually have a "legal limit" for DUI. What the blood alcohol percentage does is create a presumption - i.e., if one has more than .08 alcohol in his blood then one is presumed to be intoxicated. But intoxication can be proved by other evidence, slurred speech, impaired co-ordination, etc. I've always thought it a problem in some courts that if the defendant "looked drunk" to the cop, then that's pretty much conclusive on the issue of intoxication. But there's no question that "intoxication" means more than a glass of wine with dinner, or even a couple of beers during the ball game.

    So I agree that that's a standard that could use some definition.

    But my purpose is basically to get some of the stuff out of 18.2-308, which is too long and too complicated. Not sure I don't agree with total repeal of the statute, but as a practical matter, that ain't gonna happen.

    As to what one does in the privacy of his own home, well, you can't be in possession of heroin in the privacy of your own home, and it's not too long ago that people were convicted of "the unspeakable crime against nature" for acts committed in the privacy of their bedroom. And what worries me about drunk people in the privacy of their own home accidentally discharging a firearm through, say, a shared wall in a townhouse project, or through one of their own kids. There are people for whom there really is no risk - Peter Nap while he's out in his tobacco barn, out in the middle of nowhere, for example. But there are also a lot of people, most people, in fact, huddled together in cities like Alexandria and Norfolk where what one does with a firearm in the privacy of his own home could well affect people outside of his curtilage.
    Last edited by user; 04-28-2011 at 10:02 PM.
    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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    Regular Member riverrat10k's Avatar
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    Quote Originally Posted by Chaingun81 View Post
    There are too many laws as is and they create too many way for anti-gunners to abuse gun owners.

    ................................

    As we always tell antigunners, murder is already highly illegal - what other laws do you want?
    My feelings. If a politician ran on a platform of removing as many laws as possible from the books, he would get my vote.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by riverrat10k View Post
    My feelings. If a politician ran on a platform of removing as many laws as possible from the books, he would get my vote.
    Me too but one of the things I like about User is he gives you two answers. The right one and the one that works in the real world.

    As he pointed out, he's looking at doing something that can be passed. That's always a sticking point.

    Members of the General Assembly vote a certain way for a lot of reasons. Common sense isn't ever one of them as far as I can tell.

    One may vote for something because VCDL will give them votes or vote against something because Old Virginia will give them votes.

    Some vote because the lobby has a lot of money to throw around.
    Frank Hargrove would vote to put cameras in every bedroom if the Insurance Lobby said so.

    Finding the balance that will pass Committee, House, Senate and get signed by the Governor, is the key to it.

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    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by peter nap View Post
    drinking any amount while handling guns...but some do it quite responsibly.
    Carry On.

    Ed

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    Moderator / Administrator Grapeshot's Avatar
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    Let's not forget that Commonwealth Attorneys are also amongst the "chosen ones."

    While I agree that guns and alcohol do not mix, as a practical matter I think some established BAC will make it more palatable to the GA and offer a degree of protection to those that choose to have a glass of wine with their meal. LEO, CA, judges and knaves should all be under the same standard as us common folk.

    Only concern I have beyond that is protecting my right of self-defense even if I have had 2 beers at home on an empty stomach.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member USNA69's Avatar
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    And Once All This Is Sorted Out ...

    ... then we can start thinking about OC/CC and medically prescribed marijuana.

    That is not here yet, but maybe we should discuss OC/CC and legally prescribed medications and their impairments of judgement, e.g. Vicodin, Percocet, Oxycontin, et. al.

    What does the law say about that?
    What does common sense say about that?

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    Quote Originally Posted by peter nap View Post
    I think it's impossible to legislate everything User.
    Most people know I'm not a fan of drinking any amount while handling guns...but some do it quite responsibly...

    ...Some things need to be left t society to regulate rather than the legal system.

    I agree with Wylde. There are too many laws already.
    +1

    Unless there is a really big and dangerous problem that is not on the mend by social pressure, then no legislation, please. Prior restraint of all to protect a very, very few is just...well...out of proportion.

    As already mentioned, it also gives government another line to cross, another standard to bend. Oh, and another opportunity for warrantless entry into a residence. As if there aren't enough warrant exceptions already.

    (Unless the defense bar is feeling economic strain from declining crime statistics, of course. )

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    Regular Member wylde007's Avatar
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    Cool

    Quote Originally Posted by user View Post
    Not sure I don't agree with total repeal of the statute, but as a practical matter, that ain't gonna happen.
    Dream big or go home.

    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Quote Originally Posted by user View Post
    Actually, you can't be a concealed handgun permittee and be intoxicated while carrying. § 18.2-308(J1). You can't even drink an alcoholic beverage at a restaurant if you're carrying a concealed handgun, unless you're a law enforcement officer (the "drunken cop" exception), according to paragraph J3.
    I'm actually a bit confused by § 18.2-308(J1), because it's a little ambiguous, in my opinion:
    § 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.
    When it says "such handgun", does it mean "a concealed handgun", or does it just mean a handgun? Does it therefore mean that a CHP holder is prohibited from drinking while carrying no matter what the mode of carry might be? Or is it just while they are carrying concealed?

    It's a moot point for me, since I don't drink (and never will - both religious reasons and a family history of alcoholism that killed my grandfather), but it seems more ambiguous than a law should be.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Accomplished Advocate user's Avatar
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    Quote Originally Posted by USNA69 View Post
    ... then we can start thinking about OC/CC and medically prescribed marijuana.

    That is not here yet, but maybe we should discuss OC/CC and legally prescribed medications and their impairments of judgement, e.g. Vicodin, Percocet, Oxycontin, et. al.

    What does the law say about that?
    What does common sense say about that?
    It's possible to be "intoxicated" for legal purposes because you've taken diphenhydramine, an antihistamine. It makes some people sleepy. There really is no hard and fast definition of the term, "intoxicated"; there are a lot of cases in which the Supremes have fleshed it out with various words and phrases that all boil down to, "impaired judgment due to ingestion of a non-food substance". In my opinion, they really have presented a common sense approach to the statutes that use that word. The problem comes in the General District Court, which I compare to M*A*S*H's "meatball surgery" - the GDC is often, "meatball justice", especially in the more populous areas (if I recall correctly, Fairfax County does over a thousand contested traffic cases every day). Because they're run "efficiently" just because they don't have the resources to process the cases any other way, they turn into judgment-factories. They rely heavily on the plea-bargain system. So the result is, if the cop says you appeared to him to be intoxicated, you'd better have documentation that you have multiple sclerosis or a spinal injury in order to overcome the "deferance" that the Court gives the cop's "investigation".
    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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    Quote Originally Posted by Citizen View Post
    +1

    Unless there is a really big and dangerous problem that is not on the mend by social pressure, then no legislation, please. Prior restraint of all to protect a very, very few is just...well...out of proportion.

    As already mentioned, it also gives government another line to cross, another standard to bend. Oh, and another opportunity for warrantless entry into a residence. As if there aren't enough warrant exceptions already.

    (Unless the defense bar is feeling economic strain from declining crime statistics, of course. )
    There's a lot to be said for that point of view. Perhaps the best thing would be to remove J1 and J3 entirely with no attempt to replace them, and simply let the civil system control the potential for problems. That is to say, if someone gets drunk and causes injury or damage with his gun, the person injured can sue the bastard. The problem I see with that is that people want laws in order to prevent people from being injured at all. That's clearly not going to eliminate any problem, but I see this as one area in which prior restraint will work: there are people who will obey the law, who might otherwise, by an error in judgment, cause someone else irreparable harm. There is no way that a civil suit awarding monetary damages can give you back a dead child.
    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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    Quote Originally Posted by grylnsmn View Post
    I'm actually a bit confused by § 18.2-308(J1), because it's a little ambiguous, in my opinion:When it says "such handgun", does it mean "a concealed handgun", or does it just mean a handgun? Does it therefore mean that a CHP holder is prohibited from drinking while carrying no matter what the mode of carry might be? Or is it just while they are carrying concealed?

    It's a moot point for me, since I don't drink (and never will - both religious reasons and a family history of alcoholism that killed my grandfather), but it seems more ambiguous than a law should be.
    It's not ambiguous, "such handgun" refers to the "concealed handgun" previously mentioned. But it does irk me that it links the prohibition to permittees only. A violation of the right to equal protection, I think. Such a statute ought to apply to everyone in a general way. Statutory offenses and exceptions based on status are antithetical to our jurisprudence, but they do it anyway. For example, if you buy a used car from the bank that repossessed the car, they can knowingly and intentionally misrepresent factual information about the car without running afoul of the Virginia Consumer Protection Act. Any other car dealer would be liable, but there's a statutory exception for banks, based solely on their status as banks. In the same vein, this statute creates a criminal offense that applies only to people who have been granted a concealed carry permit.
    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.

  24. #24
    Anti-Saldana Freedom Fighter Venator's Avatar
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    Just an FYI. This is what Michigan has in regards to guns and alcohol.

    FOR OPEN CARRY:

    750.237 Liquor or controlled substance; possession or use of firearm by person under influence; violation; penalty; chemical analysis.

    Sec. 237.
    (1) An individual shall not carry, have in possession or under control, or use in any manner or discharge a firearm under any of the following circumstances:
    (a) The individual is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
    (b) The individual has an alcohol content of 0.08 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
    (c) Because of the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the individual's ability to use a firearm is visibly impaired.

    (2) Except as provided in subsections (3) and (4), an individual who violates subsection (1) is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00 for carrying or possessing a firearm, or both, and not more than $500.00 for using or discharging a firearm, or both.

    (3) An individual who violates subsection (1) and causes a serious impairment of a body function of another individual by the discharge or use in any manner of the firearm is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not less than $1,000.00 or more than $5,000.00, or both. As used in this subsection, “serious impairment of a body function” includes, but is not limited to, 1 or more of the following:
    (a) Loss of a limb or use of a limb.
    (b) Loss of a hand, foot, finger, or thumb or use of a hand, foot, finger, or thumb.
    (c) Loss of an eye or ear or of use of an eye or ear.
    (d) Loss or substantial impairment of a bodily function.
    (e) Serious visible disfigurement.
    (f) A comatose state that lasts for more than 3 days.
    (g) Measurable brain damage or mental impairment.
    (h) A skull fracture or other serious bone fracture.
    (i) Subdural hemorrhage or subdural hematoma.
    (j) Loss of an organ.

    (4) An individual who violates subsection (1) and causes the death of another individual by the discharge or use in any manner of a firearm is guilty of a felony punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both.

    (5) A peace officer who has probable cause to believe an individual violated subsection (1) may require the individual to submit to a chemical analysis of his or her breath, blood, or urine. However, an individual who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not required to submit to a chemical analysis of his or her blood.

    (6) Before an individual is required to submit to a chemical analysis under subsection (5), the peace officer shall inform the individual of all of the following:
    (a) The individual may refuse to submit to the chemical analysis, but if he or she refuses, the officer may obtain a court order requiring the individual to submit to a chemical analysis.
    (b) If the individual submits to the chemical analysis, he or she may obtain a chemical analysis from a person of his or her own choosing.

    (7) The failure of a peace officer to comply with the requirements of subsection (6) does not render the results of a chemical analysis inadmissible as evidence in a criminal prosecution for violating this section, in a civil action arising out of a violation of this section, or in any administrative proceeding arising out of a violation of this section.

    (8) The collection and testing of breath, blood, or urine specimens under this section shall be conducted in the same manner that breath, blood, or urine specimens are collected and tested for alcohol-- and controlled-substance-related driving violations under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

    (9) This section does not prohibit the individual from being charged with, convicted of, or sentenced for any other violation of law arising out of the same transaction as the violation of this section in lieu of being charged with, convicted of, or sentenced for the violation of this section.

    FOR CONCEALED CARRY

    Act 372 of 1927


    28.425k Acceptance of license as implied consent to submit to chemical analysis of breath, blood, or urine.

    Sec. 5k.

    (1) Acceptance of a license issued under this act to carry a concealed pistol constitutes implied consent to submit to a chemical analysis under this section. This section also applies to individuals listed in section 12a(a) to (f).

    (2) An individual shall not carry a concealed pistol while he or she is under the influence of alcoholic liquor or a controlled substance or while having a bodily alcohol content prohibited under this section. A person who violates this section is responsible for a state civil infraction or guilty of a crime as follows:

    (a) If the person was under the influence of alcoholic liquor or a controlled substance or a combination of alcoholic liquor and a controlled substance, or had a bodily alcohol content of .10 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, the individual is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or $100.00, or both. The court shall order the concealed weapon licensing board that issued the individual a license to carry a concealed pistol to permanently revoke the license. The concealed weapon licensing board shall permanently revoke the license as ordered by the court.

    (b) If the person had a bodily alcohol content of .08 or more but less than .10 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, the individual is guilty of a misdemeanor punishable by imprisonment for not more than 93 days or $100.00, or both. The court may order the concealed weapon licensing board that issued the individual a license to carry a concealed pistol to revoke the license for not more than 3 years. The concealed weapon licensing board shall revoke the license as ordered by the court.

    (c) If the person had a bodily alcohol content of .02 or more but less than .08 grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, the individual is responsible for a state civil infraction and may be fined not more than $100.00. The court may order the concealed weapon licensing board that issued the individual the license to revoke the license for 1 year. The concealed weapon licensing board shall revoke the license as ordered by the court. The court shall notify the concealed weapon licensing board that issued the individual a license to carry a concealed pistol if an individual is found responsible for a subsequent violation of this subdivision.

    (3) This section does not prohibit an individual licensed under this act to carry a concealed pistol who has any bodily alcohol content from transporting that pistol in the locked trunk of his or her motor vehicle or another motor vehicle in which he or she is a passenger or, if the vehicle does not have a trunk, from transporting that pistol unloaded in a locked compartment or container that is separated from the ammunition for that pistol or on a vessel if the pistol is transported unloaded in a locked compartment or container that is separated from the ammunition for that pistol.

    (4) A peace officer who has probable cause to believe an individual is carrying a concealed pistol in violation of this section may require the individual to submit to a chemical analysis of his or her breath, blood, or urine.

    (5) Before an individual is required to submit to a chemical analysis under subsection (4), the peace officer shall inform the individual of all of the following:

    (a) The individual may refuse to submit to the chemical analysis, but if he or she chooses to do so, all of the following apply:
    (i) The officer may obtain a court order requiring the individual to submit to a chemical analysis.
    (ii) The refusal may result in his or her license to carry a concealed pistol being suspended or revoked.
    (b) If the individual submits to the chemical analysis, he or she may obtain a chemical analysis described in subsection (4) from a person of his or her own choosing.

    (6) The collection and testing of breath, blood, and urine specimens under this section shall be conducted in the same manner that breath, blood, and urine specimens are collected and tested for alcohol- and controlled-substance-related driving violations under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923.

    (7) If a person refuses to take a chemical test authorized under this section, the peace
    officer shall promptly report the refusal in writing to the concealed weapon licensing board that issued the license to the individual to carry a concealed pistol.

    (8) If a person takes a chemical test authorized under this section and the test results indicate that the individual had any bodily alcohol content while carrying a concealed pistol, the peace officer shall promptly report the violation in writing to the concealed weapon licensing board that issued the license to the individual to carry a concealed pistol.

    (9) As used in this section:
    (a) “Alcoholic liquor” means that term as defined in section 105 of the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1105.
    (b) “Controlled substance” means that term as defined in section 7104 of the public health code, 1978 PA 368, MCL 333.7401.
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    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  25. #25
    Regular Member vt357's Avatar
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    Dec 2006
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    Richmond, Virginia, USA
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    I could support a change to the law barring one from carrying while intoxicated outside the home, but as others have mentioned the definition of intoxication worries me. Having a BAC limit like 0.08 or 0.10 listed in the law for carrying would help that, but the ambiguity of an officer claiming that I "looked drunk" still worries me.

    I think the inside the home portion opens up a very rotten can of worms. What would be the definition of "possession" of a firearm in your own house? If I decide to get hammered at home and have my handgun on my belt, obviously that would be considered possession while intoxicated. What about loaded, but in the nightstand? If I go to bed while drunk would I then be in violation? Would your proposal require that I unload all firearms in the house and place them in my safe before I open a beer?

    Remember that firearms are just tools. Even with that law I could be drunk in my home and still legally have access to my chainsaw, butcher knife, hammer, or matches and gasoline. You can only legislate so much, the rest comes down to personal responsibility. If someone gets drunk in their home and recklessly handles a firearm, then charge them with recklessly handling a firearm, you don't need a possession while intoxicated adder charge in addition to the first.

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