Truck Gun and Fall Beverages

[Guest mechanically]

Did some searching, but it seems my Google-fu fails me.

Had an interesting conversation over the weekend with a good friend.

In TN, a HCP is required to "carry" a gun in a vehicle.

He wanted to have a beer at an event, and was advised to return his CCW to his vehicle, so as to comply with the law regarding carry and consumption of alcohol. He did so.

I was concerned that when he drove home he was, in effect, "carrying" as defined by TN law. And, since he sampled the fine ale available, was in violation of a law I feel has very clear implication.

So, any concern here, or am I being over-cautious?

I certainly would have enjoyed sampling some of the wares at this event, but chose not to due to my understanding of the requirements of a HCP. Edited September 23, 2013 by mechanically

[gjohnsoniv]

Define "carry"  you can have firearms in your vehicle and have them unloaded with no loaded mags and carry them to and from the range.  So by that definition of carry me going to the range without a carry permit would be illegal.  If I were to advise him I would personally say drop the mag, empty the chamber, and put it in my trunk.  Hopefully the more legal savvy members will chime in here in a bit .

[Fallguy]

First let me say I am not advocating one way or the other the consumption of alcohol or the carry of a firearm.

 

Here are the applicable laws.

 

39-17-1321.  Possession of handgun while under influence -- Penalty.

 

(a) Notwithstanding whether a person has a permit issued pursuant to § 39-17-1315 or § 39-17-1351, it is an offense for a person to possess a handgun while under the influence of alcohol or any controlled substance or controlled substance analogue.

 

(b) It is an offense for a person to possess a firearm if the person is both:

 

(1) Within the confines of an establishment open to the public where liquor, wine or other alcoholic beverages, as defined in § 57-3-101(a)(1)(A), or beer, as defined in § 57-6-102(1), are served for consumption on the premises; and

 

(2) Consuming any alcoholic beverage listed in subdivision (b)(1).

 

(c )  (1) A violation of this section is a Class A misdemeanor.

 

(2) In addition to the punishment authorized by subdivision (c)(1), if the violation is of subsection (a), occurs in an establishment described in subdivision (b)(1), and the person has a handgun permit issued pursuant to § 39-17-1351, such permit shall be suspended in accordance with § 39-17-1352 for a period of three (3) years.

 

Part (a) deal with "being under the influence" and applies anywhere, there is an AG opinion saying that you can you be charged even if in your own home.

 

If you read Part (b) both subparts (1)&(2) have to be met for "consumption" to be illegal. So if you are at home (not open to the public) or not in the confines of a building "consumption" itself is not illegal.

 

What constitutes "under the influence" is strictly up to the LEOs discretion though.  IMO and I think the general consensus of the group has been, if you are legal to drive you should be ok to carry.

 

I think a LEO would have a tough argument saying he thought you were too intoxicated to carry a firearm, but let you drive off in a vehicle, or vice versa for that matter.

Edited September 23, 2013 by Fallguy

[Fallguy]

Oh and just to note....apparently it's legal to be drunk of your a$$ and have a long gun..... :shrug:

[gregintenn]

I'm certainly no legal scholar, but I'd feel better about you or your friend carrying a gun while drinking than driving home after drinking.

[Guest mechanically]

These are helpful, and it looks like I had not put the multiple parts of the law together as completely as I could have.

I asked in the first place since I am in the process of building a Get Home Bag. It will include a firearm.

As he drove off, I realized it would be quite a hassle to pull it out, unload, go home, and reset. Not impossible, but I was concerned about forgetting to do it one time, and then having to explain.

I also agree on the remarks regarding drink and piloting a vehicle. I won't make excuses, but I do tend to be a "one beer with dinner" sort of guy, and that's pretty infrequent. Again, not making excuses, but rather thanking the community for sage counsel.

[DangerDanJD]

I personally know someone that was arrested and charged with 39-17-1231 about five years ago. She was pulled over for speeding driving home from dinner. She produced his HCP to the officer and when asked, told the officer that she had a glass of wine at dinner. Being in her 20's and in a college town, the officer gave her field sobriety tests which she passed. The officer then charged her with possession of a handgun while under the influence and took her to jail where he was processed and released. The charges were later dropped but in exchange she agreed to surrender his HCP. 

 

The law isn't very clear, but it can be (and has been) construed to mean that consumption of any amount of alcohol while in possession of a firearm to be a violation. 

 

I am probably more cautious then most, but I generally leave my firearm at home if I plan on even having a single beer or glass of wine at dinner. 

 

As others have said, I certainly do not condone possessing a firearm or driving if anyone is under the influence or impaired. 

[Fallguy]

 

 

The law isn't very clear, but it can be (and has been) construed to mean that consumption of any amount of alcohol while in possession of a firearm to be a violation. 

 

 

I agree the law is open to interpretation, that being what constitutes under the influence.....but consuming and being under the influence are not the same thing, or they would not be addressed differently in the law.  

[DangerDanJD]

I agree the law is open to interpretation, that being what constitutes under the influence.....but consuming and being under the influence are not the same thing, or they would not be addressed differently in the law.  

 

Not arguing with you. I am just stating how law enforcement has interpreted it. As they like to say on the forums. You might beat the rap but not the ride. 

[Fallguy]

Not arguing with you. I am just stating how law enforcement has interpreted it. As they like to say on the forums. You might beat the rap but not the ride. 

 

Yep

 

<biting my tongue> 

[Guest mechanically]

I personally know someone that was arrested and charged with 39-17-1231 about five years ago. . . . 

Very helpful anecdote. That was almost exactly what I was concerned about. Being that my situation is a system designed to be with me in the car at all times, I am weighing the valid concerns. I've never personally drawn a line between "Consumption" and "Under the Influence" when it comes to HCP. 

 

I agree the law is open to interpretation, that being what constitutes under the influence.....but consuming and being under the influence are not the same thing, or they would not be addressed differently in the law.  

That's the challenge. I'm not sure if I'm willing to intentionally be the guinea pig on something like that.  

[DaveTN]

Are you willing to submit to a breath test? If you do you will be giving verification of drinking and carrying with no legal limit stated. If you refuse you may well find yourself charged with DUI.

It doesn’t really sound like it’s worth it does it?

[peejman]

As Fallguy is alluding to, there doesn't appear to be much case law to clarify the difference between consumption and "under the influence".  As we all know, some people get drunk after one beer.  Some are perfectly sober after a 12 pack.  My interpretation is that "under the influence" is failing field sobriety tests and/or the blood alcohol content limit.  As to the anecdote above, I think I'd have fought that.

[tennessee01tacoma]

I'm no legal expert, I also don't drink, but my opinion is that if you wanna drink when your out somewhere then you better have a lockable container to lock your unloaded pistol in. I don't know of any law pertaining to possessing ammunition having consumed alcohol.

[Guest mechanically]

As Fallguy is alluding to, there doesn't appear to be much case law to clarify the difference between consumption and "under the influence".  As we all know, some people get drunk after one beer.  Some are perfectly sober after a 12 pack.  My interpretation is that "under the influence" is failing field sobriety tests and/or the blood alcohol content limit.  As to the anecdote above, I think I'd have fought that.

I don't disagree. However, I'm not sure I'd really want to "fight" anything. In the story above, I think what's interesting is that the "perp" was actually booked. I'm no legal eagle, but I feel that when booked into the system, there is absolutely an assumption of guilt, regardless of the formality of innocence until proven otherwise.

 

I also really wanted to avoid the discussion of just how much makes a person "drunk." I kinda figured this conversation would teeter on that edge. I said earlier that I won't make excuses for my behavior in any circumstance. I personally have never been anywhere close. I don't care for the cheap stuff, and I'm too cheap to buy more than one serving of what I like. But, again, I didn't want to go down this road.

 

I think the solution would be to remain vigilant enough to remember to field strip my Get Home Bag contents in the event I meet the guys after work. The intentionality of that act would, in my eyes, go a long way towards demonstrating compliance with the law.

Edited September 24, 2013 by mechanically

[LawVol]

Here's an unreported case I found:

 

http://www.tba.org/tba_files/TCCA/2005/ewerlingwillo.pdf

 

Defendant was sitting in his van in a parking lot at Percy Priest Dam at odd hours.  He had a .45 and admitted to having "some beer" the evening before.  He was convicted of possessing a weapon in a park, possessing a handgun while under the influence of alcohol, and trespassing.   He apparently was not charged with DUI or public intoxication, and it does not appear that a field sobriety test or breathalyzer was used.  The only evidence that he was under the influence was (1) his admission to having "some beer," and (2) the officer's testimony that he smelled alcohol on the guy's breath and that the guy was under the influence.  The Court of Appeals said that was enough, Supreme Court denied the defendant's application for permission to appeal.

 

So yeah, don't assume that because you're (legally) OK to drive that you're also OK to carry.  

Edited September 24, 2013 by LawVol

[Titansfan]

If I have my gun on me or it's in my vehicle that I would drive or be in, I will not have any alcohol.

[Oh Shoot]

Oh and just to note....apparently it's legal to be drunk of your a$$ and have a long gun..... :shrug:

 

Yep. Pretty sure old statute said "firearm" and not "handgun".

 

That actually should be a clear cut out for anyone bombed with only a long gun.

 

- OS

[Mike.357]

I find it interesting that if you are going to drink any amount of alcohol apparently you no longer have the ability to defend yourself with the best tool available.  In this example the cop smelled beer on his breath.  I doubt it had been any length of time since he had consumed.

 

I seriously doubt anyone can not be under the influence after drinking a 12 pack.  There certainly are people who can drink large amounts and not show outward ill effect due to their experience as a drinker.  But they are still under the influence.

[peejman]

Here's an unreported case I found:

 

http://www.tba.org/tba_files/TCCA/2005/ewerlingwillo.pdf

 

Defendant was sitting in his van in a parking lot at Percy Priest Dam at odd hours.  He had a .45 and admitted to having "some beer" the evening before.  He was convicted of possessing a weapon in a park, possessing a handgun while under the influence of alcohol, and trespassing.   He apparently was not charged with DUI or public intoxication, and it does not appear that a field sobriety test or breathalyzer was used.  The only evidence that he was under the influence was (1) his admission to having "some beer," and (2) the officer's testimony that he smelled alcohol on the guy's breath.  The Court of Appeals said that was enough, Supreme Court denied the defendant's application for permission to appeal.

 

So yeah, don't assume that because you're (legally) OK to drive that you're also OK to carry.  

 

 

So you can be convicted of possession while under the influence based on what an officer smelled and your own admission.  Interesting.  Based on this and the post above, I assume the conviction is based primarily on the admission.  The logical course of action seems clear. 

[Mike.357]

So you can be convicted of possession while under the influence based on what an officer smelled and your own admission.  Interesting.  Based on this and the post above, I assume the conviction is based primarily on the admission.  The logical course of action seems clear. 

 

 

and that is why generally nothing good comes from talking to a cop,  dude should have kept his mouth shut.

[Oh Shoot]

I find it interesting that if you are going to drink any amount of alcohol apparently you no longer have the ability to defend yourself with the best tool available.  In this example the cop smelled beer on his breath. ..

 

Oh, you do, even if dead drunk can't be prosecuted for it as long as the shoot is justified.

 

You just can't get away with it before you off the bad guy! :)

 

- OS

[Knox Al]

If you read the court ruling, the guy represented himself at the appeal. His story about why he was at the park at 3:00 a.m. sounded really thin too.

The questions he asked at the appeal trial did not go into whether he was under the influence other than he was not arrested for public intoxication.

 

The two big mistakes I see is the admission to the police he had been drinking and not using a qualified attorney at the appeal and maybe the trial. The ruling footnotes he had an attorney, now deceased, doesn't say if he represented him at the trial.

 

The odds are stacked against you in court. The only way they get fines and court costs is if you are convicted. I think he could have won with competent representation.

Edited October 3, 2013 by Knox Al

[McGarrett]

If drinking were on my agenda I would plan in advance on who was driving and would leave my carry gun at home. With a commercial driver's license it is just not worth the risk and also I would not want to run into issues with the HCP. There is just too much at stake for me to risk it. I am not suggesting everyone should do it this way but just stating how I handle this situation. I tend to see things very black & white anyway so not a lot of gray areas for me.

 

I will also add that I have not had a drink in years, at least more than 5 years. I just find that I would rather carry and not worry about any issues. As I have gotten older I have noticed drinking doesn't do much for me anyway, not to mention it is expensive. If I did drink I would probably enjoy it more at home. Just my 2 cents.

[Guest Jasonbsexton]

So you can't carry in a place that sells alcohol at all? Even if it's a family restaurant? Or somewhere that alcohol isn't their primary draw?