Possession of a Firearm, Pistol or Taser Under the Influence of Alcohol or Drugs

iStock_000018154126SmallA permit and license to carrying a concealed weapon is a privilege that many citizens of Michigan have received and valued. Many believe it should be a right to carry a concealed pistol similar to the Constitutional Second Amendment “right of the people to keep and bear Arms for the defense of himself and state”. Although the constitution does not expressly permit those Arms to be concealed, there is certainly a strong faction that supports gun rights in our country. But the state restricts those rights when a person is intoxicated. In fact, the State of Michigan forbids a person from carrying a concealed pistol or portable electro-muscular disruption device, or Taser, while he or she is under the influence of alcohol or any controlled substance. Similarly Michigan law states that an individual shall not carry a concealed pistol or Taser while having a bodily alcohol content (BAC) above .02 grams per 100 milliliters of blood or 210 liters of breath.

There are different penalties attached to different levels of bodily alcohol content or levels of intoxication. “Under the influence of alcohol or controlled substance” means because of drinking alcohol, or using a controlled substance the person’s mental or physical condition was significantly affected and the person was no longer able to use a weapon in a normal manner. The language is similar to drunk driving laws. The penalty is a misdemeanor conviction punishable by up to 93 days in jail and automatic and permanent revocation of the license to CCW. That penalty is the same for carrying a concealed weapon with bodily alcohol content (BAC) of .10 or above.

If a person carried a concealed pistol or Taser with a BAC between .08 and .10 the penalty is a misdemeanor punishable by up to 93 days in jail and the court may order the CCW license be revoked for any period of time but not more than three years. The court does not have to order any revocation when the BAC is less than .10 which is a big difference in penalty opposed to with a BAC over .10.

If a person carried a concealed pistol or Taser with a BAC between .02 and .08 the penalty is a civil infraction with a fine of not more than $100. The court may order the license to carry a concealed weapon be suspended for one year. In the event of this civil infraction the court does not have to order suspension and most courts do not although they do have to report the person was found responsible for a second or subsequent violation but not the first violation.

Determination of BAC may only be determined by a blood test using a Michigan State Police Blood Alcohol Specimen Collection Kit or with a breath alcohol evidential Datamaster BAC or DMT. These are the exact methods as are used in drunk driving prosecutions. The same DUI defenses of breath and blood alcohol testing apply. The samples must be collected properly, administered reliability and interpreted accurately. The persons collecting and analyzing the breath or blood samples must also be properly trained and qualified. Anything short the reliability of the results and accuracy of the results are questionable and very defensible.

Before a breath or blood test is requested and administered the police must notify the person that if the test is refused it may result in the license being suspended or revoked. Police, especially when also arresting someone for DUI often neglect to advise the person of their chemical test rights explained above regarding the weapon. This may be a helpful technicality in certain situations.

There is a locked case transportation exception. Specifically if a pistol or Taser may be locked in a trunk or, if the vehicle does not have a trunk, locked in a locked compartment or container, this law will not apply to an intoxicated passenger in the same vehicle. An intoxicated person may also transport a pistol on a boat or train if it is transported in a locked compartment or container that is separated from the ammunition for that pistol.

THE BEST ADVICE IS TO KEEP YOUR FIREARM IN THE TRUNK IF YOU HAVE CONSUMED ALCOHOL BEFORE DRIVING.

Similarly Michigan law also prohibits a person who is intoxicated or has a BAC of .08 or more, from possessing or discharging a firearm regardless of whether it is concealed. The penalty is a misdemeanor punishable by jail for up to 93 days. If the offense results in a serious injury to a person the penalty is a felony punishable by up to 5 years in prison. If the offense results in death the penalty is a felony punishable by up to 15 years in prison.

This law does not apply to constructive possession of the firearm in a home because the Michigan Supreme Court has ruled that this is a violation of the Second Amendment of the United States and Michigan Constitutional right to bear arms in your home for protection. Constructive possession means the weapon was not directly located on a person but in the immediate area like a closet or drawer. To interpret the statute otherwise would mean that a person that had a pistol at their home would not be allowed to drink alcohol to the point of intoxication or BAC over .08.

Carrying, use, possession or concealment of a firearm, pistol or Taser under the influence of alcohol and/or drugs requires a defense attorney that understands and can effectively defend against breath and blood alcohol testing. Having been specifically trained in this field Barton Morris specializes in the science of breath and blood alcohol testing as it relates to these offenses and can provide the best and most effective defense in court.

CLICK HERE FOR A COMPREHENSIVE REVIEW OF THE FIREARM LAWS IN THE STATE OF MICHIGAN

 

Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case. Mr. Morris fights for his clients and does not just plea them guilty.

Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. His firm is prepared to take on complex legal issues with success. Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012 and 2013 for DUI/DWI and criminal defense by DBusiness Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2015 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”

December 23rd, 2013|