Pistols & Tasers While Using Alcohol

Michigan Weapons Crimes Lawyers Protect Your Rights

A permit and license to carry 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 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 BAC above 0.02 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. 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 0.10 or above.

If a person carried a concealed pistol or Taser with a BAC between 0.08 and 0.10, 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 3 years. The court does not have to order any revocation when the BAC is less than 0.10 which is a big difference in penalty as opposed to with a BAC over 0.10.

If a person carried a concealed pistol or Taser with a BAC between 0.02 and 0.08, 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 reliably, 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 is locked in a trunk or, if the vehicle lacks a trunk, locked in a locked container or compartment, 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 container or compartment that is separate from the ammunition for said 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 0.08 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 who had a pistol at their home would not be allowed to drink alcohol to the point of intoxication or have a BAC over 0.08.

Call our Michigan weapons crimes lawyers today at (248) 368-0038 to schedule a free consultation.
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