Armed and under the limit.

[Oh Shoot]

We know that part, but what does "under the influence mean? Any at all, a sip, depends on the person, 3, or do you have to blow .? or other. It appears there is no definition of what it is other than it would be up for interpretation from the LEO, then ultimately the judge.

Read your quotes. You were both opining about alcohol not being mentioned in statute. Hence MY comment.

- OS

[Fallguy]

We know that part, but what does "under the influence mean? Any at all, a sip, depends on the person, 3, or do you have to blow .? or other. It appears there is no definition of what it is other than it would be up for interpretation from the LEO, then ultimately the judge.

The reason he posted the law was to address the post he quoted that thought that alcohol wasn't mentioned.

This is only my opinion, but I don't think a violation of this law has to do with having consumed a certain amount of alcohol or a certain BAC, but agree with you it will simply be up to the LEO own perception. Then in court it will be your word against his and we know how that would go.

It is sort of like the public intoxication law. 39-17-310]. When I worked as a jailer ever arrest I saw on that charge was based on the officers own evaluation of the person.

[Guest db99wj]

Read your quotes. You were both opining about alcohol not being mentioned in statute. Hence MY comment.

- OS

Ah, I see. My point for the most part, was more in thinking about what determines the Under the influence. I wasn't sure, about if it specifically mentioned alchol and other substances.

Anyway, I assumed that Under the influence meant alcohol and other stuff, but what makes you "Under the influence", it keeps coming down to being a judgment call.

[Oh Shoot]

Ah, I see. My point for the most part, was more in thinking about what determines the Under the influence. I wasn't sure, about if it specifically mentioned alchol and other substances.

Anyway, I assumed that Under the influence meant alcohol and other stuff, but what makes you "Under the influence", it keeps coming down to being a judgment call.

Yep, agree with you and FallGuy on that exactly.

Just another in the (mostly) gray areas in the weapons laws.

Heck, you can be arrested for DUI even if you blow below the limit you know. And a suit for false arrest won't go anywhere.

Cops and judges have an incredible amount of discretionary power, especially within the weapons statutes.

It's amazing to me that there haven't been more arrests for carrying in what I'd call non-compliant posted places, carrying under the influence, and others, so that maybe we'd at least see some case law precedents. Or something to appeal. Or something.

- OS

[mdmoseley]

It depends on what the 'system' determines 'under the influence' to be in the city/county you are charged in. There doesn't seem to be a definite standard for possession of a handgun while under the influence in TN as clear as say .08 or .10 for DWI. Even then, you can be charged for DWI in many states for a BAC under the 'legal' limit if you appear to be intoxicated.

Some folks may be under the influence of alcohol from one drink......some a half pint of whiskey. The law does not strictly say you cannot consume alcohol...it says you cannot be 'under the influence'. I would like to see real case law on this one on how intoxicated people were who were convicted under this statute.

To play it safe with such a gray law, just drink at home. TN seems to have a real hang up with alcohol in more ways than one. When the law is written that off duty police can't have A DRINK while carrying in a place that serves....you know the state has a problem with liquor.

You are not going to find a case where BAC was checked. Like a PI charge we wouldn't do a BAC. I guess someone could have it checked on their own after they bonded out but that could be a bit and the alcohol would have burned off by then depending on the level of intoxication.

As mentioned above, if you take a drink then technically you are under the influence. Do the smart thing and either drink/dont carry or vise versa. Other option is to have a DD and a Designated gun holder.

[Parrothead]

wife and i both have HCP...one of use drives and the other can have a drink or two. typically, i carry the weapon but if i choose to drink it goes in her purse. I can relax knowing we are both within the letter of the law

[Oh Shoot]

You are not going to find a case where BAC was checked. Like a PI charge we wouldn't do a BAC. ...

So, you've made arrests for carrying while under the influence?

What was the court sentence?

Does the carry division in Dept. of Safety get notified of conviction?

- OS

[Guest PatriotCSA]

With regard to guns, I would never want to put my right to defend myself in jeopardy over a drink. I decided a long time ago not to drink alcohol period. It's not a religious thing but rather a practical thing. Being the only male in my family (other than my 90 year old grand father), I have a particularly hefty responsibility for protecting the women in my family. If I ever get a call and hear that someone is in a car wreck, or if my sister gets stuck in a bad part of town by a lousy boyfriend ditching her, or even worse, if the SHTF and the world is going to hell real quick, I *must* be in a position of mental clarity and physical sharpness to be able to get my family to safety. I have nothing against drinking. I just know with my luck that it would be halfway through my second sixpack one weekend that someone would need me.

Basically to answer the original post, it ain't worth risking my guns or safety to do drink with my guns.

[mdmoseley]

So, you've made arrests for carrying while under the influence?

What was the court sentence?

Does the carry division in Dept. of Safety get notified of conviction?

- OS

Not sure where you got that from my post. Unless it's a DUI or accident with injury where DUI is suspected a blood draw is typically not done because there isn't a legal limit for other alcohol related offenses.

[Oh Shoot]

Not sure where you got that from my post. Unless it's a DUI or accident with injury where DUI is suspected a blood draw is typically not done because there isn't a legal limit for other alcohol related offenses.

???

None of my three questions had anything to do with whether a BAC or blood sample was used.

- OS

[mdmoseley]

My original statement was made to Razor. I replied to you because of your question to me and quoted my post about the BAC.

Edited February 14, 2010 by mdmoseley

[Oh Shoot]

My original statement was made to Razor. I replied to you because of your question to me and quoted my post about the BAC.

I don't understand your evasion in answering my simple questions, but so be it.

- OS

[mdmoseley]

No i have never arrested someone for that. But again I never even implied that in my other posts so I still don't understand where you got that from.

[Oh Shoot]

No i have never arrested someone for that. But again I never even implied that in my other posts so I still don't understand where you got that from.

So far, none of us have ever found a case of a HCP holder being arrested for this (or for carrying in posted business).

Since you're a LEO and especially since you said "You are not going to find a case where BAC was checked" regarding HCP carry while intoxicated, it sounded as if you had personal experience on the matter. So possibility of your having arrested someone for it seemed logically "implied" to me.

Sorry you took it as something to be defensive about.

- OS

[Guest 270win]

MD,

I can see how you guys can make an arrest for this 'possession of a handgun while under influence' kind of like a public intox. I've seen quite a few drunks arrested for public intox and they were three sheets to the wind. I always forget that in TN drunk driving is called DUI and not DWI (I am from Arkansas originally). So i'm guessing the 'influence' part is kind of like the same as intoxicated....actions impaired.

[Justbo1901]

Well i read some of the post here not all of them though, this is my opinion on the subject and from what happened to me on Saturday night.

I went to a wedding on Saturday night, there at the wedding I had 4 beers left around 11pm. The wedding was about an hour away from Nashville. I drove my date back to her place. The headed home, I always have at least one handgun in my truck whether it be my carry weapon smith and wesson sigma, or a .32 h&K ?(that stays in my truck) I was pulled over on the way home about 2 mile from my dates apartment. 42 mph in a 30 time was about 12:30 am. the LEO came to my window I already had my license and hcp out for him. he asked where my hand gun was i told him under my console. then asked me where i was coming from, explained from a wedding and droped my date off, he asked if I had be drinking I told him what I drank at the wedding which was about an hour and a half before the stop. he then asked me to step out of the truck. I went through a field soberity test. Now remember it was around 33 degrees on saturday night I was cold and nervous about being pulled over, walked the line followed the pen and stood on one foot and counted, he then asked again how many I had drank, Then said there was suspesion i was "under the influence" so he cuffed me sat in the back seat of the car and took a beathalizer, which was about 25 min after I was cuffed, I then blew a .02, was uncuffed and not ticketed in anyway free to go home, only thing i got was sore wrist from sitting with the cuffs on my hand in the backseat of the car .... so if there is a law for under the influence and carrying i would think its the legal limit just like dui at .08 or the police officer was giving me a break you decide?

Edited February 15, 2010 by Justbo1901

[Daniel]

Its .08

[Justbo1901]

Its .08

I know guess i just got finger happy with the 000?

[Erik88]

wow, I would think you had a forgiving LEO, but since this whole debate has been up in the air, maybe we really don't know what the law is( yes we know what it says but not what it means). As OS said there is a lot of gray area... Either way I'm glad it worked out for you.

[Guest 1817ak47]

I didn't read all hte posts, but there are or at least were some cough medicines and breathe fresheners that contained alcohol. and that could put the individual in a pickel.

[Oh Shoot]

... so if there is a law for under the influence and carrying i would think its the legal limit just like dui at .08 or the police officer was giving me a break you decide?

Can only conclude that THAT officer interpreted 39-17-1321 (IF he even considered it) to mean that you'd need to have same level of intoxication as DUI statute to be "under the influence".

But mdmoseley here, says that wouldn't be necessary to be arrested for it.

Conclusion: as I've opined, it's quite obvious interpretation is left to the individual LEO as far as arrest. Hence, gray as can be.

- OS

[macville]

Can only conclude that THAT officer interpreted 39-17-1321 (IF he even considered it) to mean that you'd need to have same level of intoxication as DUI statute to be "under the influence".

But mdmoseley here, says that wouldn't be necessary to be arrested for it.

Conclusion: as I've opined, it's quite obvious interpretation is left to the individual LEO as far as arrest. Hence, gray as can be.

Which is what it SHOULD be. It's simple. If if you drive a car at .07 BAC, you should be able to carry a gun. It's absurd to think that a person can safely handle a car up to .08 and not a gun. In fact, considering the people I've seen shoot a gun for the first time hit a target pretty good, I'd say it's easier to handle/shoot a gun accurately than it is to drive a car. If it's about "well, alcohol clouds the mind", then what's the difference between trying to drive between the lines-not hitting anyone, and trying to decide if a person is trying to kill you?

If we don't want to allow people to have some alcohol in their system and carry a gun, fine. But the same standard should be applied to people who drive because we seems to have way too many DD deaths in this country.

Matthew

[mac12]

When I made the decision to carry, I gave up alcohol. Didn't want to take any unnecessary risks.

My opinion is that it's just part of being a responsible gun owner, plus I just don't have to worry about it.

+1 This is the safe way.

[LagerHead]

Which is what it SHOULD be. It's simple. If if you drive a car at .07 BAC, you should be able to carry a gun. It's absurd to think that a person can safely handle a car up to .08 and not a gun. In fact, considering the people I've seen shoot a gun for the first time hit a target pretty good, I'd say it's easier to handle/shoot a gun accurately than it is to drive a car. If it's about "well, alcohol clouds the mind", then what's the difference between trying to drive between the lines-not hitting anyone, and trying to decide if a person is trying to kill you?

If we don't want to allow people to have some alcohol in their system and carry a gun, fine. But the same standard should be applied to people who drive because we seems to have way too many DD deaths in this country.

Matthew

I can live with that. Good argument.

[Fallguy]

Just to muddy the waters a bit more, remember you can still be arrested for DUI even if your BAC is below .08 if the officers feels you are "under the influence" you are just automatically in violation if you are over .08

55-10-401 Driving under the influence of intoxicant, drug or drug producing stimulant prohibited — Alcohol concentration in blood or breath.

(a) It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises that is generally frequented by the public at large, while:

(1)

Under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or

(2)

The alcohol concentration in the person's blood or breath is eight-hundredths of one percent (.08 %) or more.

So even in the DUI law, "under the influence" and a BAC of .08 are two different things.

Again I have to agree with OS that "under the influence" is going to be determined by the LEO at the time.