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Guns and Alcohol, Revisited

user

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Feb 12, 2009
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Northern Piedmont
... 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".
 

user

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+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. :D)

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.
 

user

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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.
 

Venator

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6,462
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Lansing area, Michigan, USA
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.
 

vt357

Regular Member
Joined
Dec 16, 2006
Messages
490
Location
Richmond, Virginia, USA
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.
 

jmelvin

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Jun 12, 2008
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Lynchburg, Virginia, USA
+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. :D)

I agree with this sentiment entirely.
 

FretlessMayhem

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Joined
Apr 6, 2008
Messages
46
Location
Chesapeake, VA
... 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?

Interestingly enough, in the VA statute for possessing marijuana, there is an exception for medical use. I've often wondered why no one ever mentions it.

http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-250.1

It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§ 54.1-3400 et seq.).

On the topic of prescription drugs, I have to take Percocet fairly regularly in order to walk without pain after someone discharged a .45 into the base of my left foot accidentally. I can promise that it can be taken (as prescribed) without changing one's mental state and negatively effecting one's judgment. That happened to me in 2004, and I've carried every day (after I learned to walk again) since then without issue.
 

DontTreadOnMeVa

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I propose the repeal of 18.2-308 in its entirety.

+1

There are too many laws as is.....

+1

Could not agree more. We let government and the legal code to grow and grow...and our liberty shrinks.

For every law that is proposed, law makers should have to send five times longer simplifying, reducing or repealing laws. The size, breath and level of government intrusion in our lives we have allowed is shameful.
 

NovaCop

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I am against any sort of law banning guns and alcohol consumption in one's own home. There is Va case law that allows intoxicated subjects the same rights to self defense. I also believe a person should have freedom in their own home and believe this kind of law too intrusive. Like already mentioned, there are already laws in place if you're drunk and squeeze one off. Actually that's quite common, for some reason it seems like beer and cleaning a glock (forgetting the chambered round) is becoming a hobby. Regardless the current laws already cover that.

Although I am 100% against drinking any amount of alcohol and carrying, I am not quick to support a law against said action. I would have to see a detailed proposed law before I could support or deny it. Making a BAC requirement in my opinion would be too complicated. There is no implied consent like driving and field breath tests are not reliable enough for most courts to recognize them. Normally they are used by consent so the suspected violator would easily be able to refuse thus making the law unenforceable unless you make carrying a complied consent to alcohol tests which I never see happening.

On a side note, I saw about 4 tv's ruined in the past year due to drinking while practicing draw and dry firing. You can't create a law against stupidity.
 

Blk97F150

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Personally, I really don't care what some drunk is carrying... its what he does with it that matters, and those issues are already covered by other laws.

That said, I think alcohol and firearms don't mix.
 

Grapeshot

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Valhalla
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.

If someone gets drunk [strike]in their home[/strike] 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.

+1 That is the crux of the matter.

It is illegal to murder, intoxicated or not. It is illegal to batter, drunk or sober.
It is illegal to be drunk in public (yes?)

The smell of alcohol, maybe mouthwash, should limit my ability/right to defend myself why? If justified charge me with my faulty actions, but NOT because I have had a beer or taken a medication. Personal responsibility cannot be legislated.

Not having committed any overt act against society or person and then have to spend time/money to defend myself against "what if," non-performed actions is abhorrent.
 

ed

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Loudoun County - Dulles Airport, Virginia, USA
This. ^^^^^^

I agree with other sentiments in this thread, while I don't think that folks should drink and carry, i would OPPOSE ANY law restricting just that. More laws are not what we need.
I agree too Walt.. In fact.. while I don't drink and don't advocate drinking and carrying.. I would like the law to allow drinking while CC just so we are not second class citizens to the commonwealth attorneys that can drink, cc and do so with no training.
 

Citizen

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Fairfax Co., VA
User,

I foresee resistance from police to such a measure.

The post above by the resident cop reminded me. The police industry used to have a fairly high incidence of alcoholism. Such a measure is bound to affect cops. If you think about it, a cop has a good chance of having a gun at home. How many have their gun or back-up gun physically close enough to count as "possess"? And, how many of those like to have a few beers in the evening and weekend. Maybe not completely plastered, but enough to be in jeopardy by such a law.

And, think of all those cops we periodically hear about arrested for DUI--I would tend to think they would likely have either their service weapon or their personal back-up gun on them.

Hmmmm. And, what about those two-martini lunches between the chief and the mayor's aide? Double hmmmmm.
 

NovaCop

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The post above me is so typical... Almost every thread turns into anti police. I say I don't like a law restricting alcohol and guns because it's intrusive on citizens and unenforceable however it is perceived that cops are alcoholics. What the hell? On a side note, my dept along with every dept I know already states in s.o.p's that officers can't possess a gun while under the influence of ANY alcohol. Doing so would result in severe suspension or termination. Name another job with those requirements? Special class? Haha.
 

jmelvin

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NovaCop I don't think Citizen's post is at all anti-police. It brings to light some very real realities for considerations likely not taken into account. The fact that your department has restrictions on you and your co-workers has no bearing on what might be found elsewhere through The Commonwealth.
 
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