Possession of handgun while under the influence

[DaveTN]

I don’t drink and drive, ever; so DUI will never be an issue to me. However… I do go out and drink if I have a DD.

Let’s say that I’m out shopping or running errands with the wife. Later we decided to go to a bar. Since I know I can’t take my gun in a bar, and I know I’m going to be legally intoxicated when I leave; I decided to secure my weapon in the vehicle. I clear the weapon, unload the magazine and store them in the rear compartments of my Suburban (I don’t have a trunk).

On the way home my wife gets stopped for speeding (she has not been drinking). While he is stopping me the Officer runs a license check and sees that I have a carry permit. Upon approaching my vehicle he sees that my wife is driving and I am sitting in the passengers seat. He asks if there are any weapons in the vehicle. I tell him that there is, but that it is unloaded and secured in the back on the vehicle.

The Officer decides to arrest me under 39-17-1321. Possession of handgun while under influence.

Do you think this charge would stand?

Discuss.

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.

( A violation of this section is a Class A misdemeanor

[Acts 1994, ch. 943, § 10; 1997, ch. 476, § 4.]

[TripleDigitRide]

I would like to think NO, but I'm not an expert on such matters.

Is this strictly hypothetical?

[DaveTN]

Is this strictly hypothetical?

Yes.

It popped into my head while reading the blog on Patrick Stegall’s website.

[Fallguy]

I guess I always thought it meant a loaded weapon, not unloaded and secured.

So IMO, No, I don't think it would stick.

[Smith]

Yes, it could stick. Anytime alcohol is involved (even in your home BTW) you have handed over discretion to the judicial system. Depending on officer and judge you will have no defense. It will be up to their judgment how much to enforce or how much mercy is shown.

[Fallguy]

Just to add, one of the reasons I thought applied to a loaded weapon is because the code mentions 39-17-1315 & 39-17-1351. You don't need a permit to carry a unloaded weapon.

But, nsnate02 is correct that you can be charged with 39-17-1321 even your home, were you don't have to have permit either.

At least based on AG opinion 98-151*

*Note some of the laws have changed since then so T.C.A. numbers are different, but I would say the overall meaning of the opinion is unchanged.

[Guest Revelator]

If you're a convicted felon and you have a gun in such a situation--in the back, unloaded, safely stowed, etc.--I think you'd be prosecuted to the fullest extent. But if you're simply an upstanding citizen who's had too much to drink, no arrest record, I think they'd let you go. So much of it is going to depend on the impressions of the officer on the scene. Even if you were actually arrested they'd have to prove 1) you're under the influence, and 2) in possession of the gun. 2) wouldn't be so hard for them, but 1) might be. If the car reeks of booze and you can't even sit up straight in your seat that might be enough. But we aren't in the world of field sobriety tests and BAC readings. Again, it's the impressions of the officer. If your wife is sober, has her seat belt on, and doesn't have any outstanding warrants I think they'll send you on your way regardless. Wost case scenario: you have to go to court and the prosecutor dismisses the case. I just don't think they'd want to deal with something like this. I realize that's no fun but it could be much worse.

[Oh Shoot]

Oh c'mon...assuming that the cop even actually ran YOUR license, you would have to be really spouting off or he would have to be having a very bad day period to run you in.

<LawyerImpersonation>

And I agree with Double, no way a judge is gonna convict you of that, unless you really spout off to him or somesuch.

I mean really are you really possessing the gun, locked in the trunk, unloaded, as far as the actual intent of the law?

</LawyerImpersonation>

Also, if you were worried about it, you could just say you didn't bring a gun. Okay, what if he searches the car? Answer: "Oops, I put that in there couple of days ago, and I FORGOT."

- OS

[mdlave]

I understand that the driver has an obligation to show identification for the privilege of driving, but as a passenger, wouldn't a verbal identification be sufficient? As long as no other criminal activity is suspected, why would a passenger be obligated to produce a driver's license?

[Guest Revelator]

The definition of possession goes pretty far, in the law at least. And I could see someplace like a small town getting worked up over this, but I think it would go away pretty easily.

[Oh Shoot]

I understand that the driver has an obligation to show identification for the privilege of driving, but as a passenger, wouldn't a verbal identification be sufficient? As long as no other criminal activity is suspected, why would a passenger be obligated to produce a driver's license?

Cops can do what they want.

I've had them ask for ID all around in my younger days of running a little wilder.

- OS

Edited October 5, 2008 by OhShoot
self-incrimination

[mdlave]

Cops can do what they want.

Oh boy. Let's not open that can of worms.....

I guess my question is, what is the reasonable suspicion towards the passenger that turns the interaction into an investigatory one? Suspicion of underage drinking? Something else?

[Fallguy]

DAS makes very good points.

Here is another question on this hypothetical, since the handgun is locked up, unloaded in the back...who is really in possession of it? If it is the driver without a HCP, it is fine because you don't need a permit to carry an unloaded weapon. I mean it's not like it is under the seat of one individual or another or in the center console quickly accessible to both parties.

Just another reason that as long as everyone is cool....probably not going ot be a problem.

[DaveTN]

Wost case scenario: you have to go to court and the prosecutor dismisses the case.

I disagree. The worst case scenario would be that you go to court and are convicted of the charge and lose your carry permit.

I understand that the driver has an obligation to show identification for the privilege of driving, but as a passenger, wouldn't a verbal identification be sufficient? As long as no other criminal activity is suspected, why would a passenger be obligated to produce a driver's license?

In my scenario the passenger wasn’t asked to show ID. The Officer asks a simple question. “Are there any weapons in the vehicle?†A drunks mind can’t work fast enough to think of the possible repercussions of the answer he gives. He can tell the truth, lie, or become a drunk playing lawyer and invoke the 5th or get out of the vehicle and lock the doors. (Sorry about the last part, I just had to add that after seeing that video. I laugh out loud every time I picture someone doing that)

The intoxication is a given. The Officer will nail it in court the same as a DUI that refuses to submit.

The question here (as I see it) is possession and the state of the firearm. The written law does not define (at least not that I see) possession or anything about the state of the firearm (only that it is a handgun).

Seems to me there must be a definition or case law somewhere on this.

Was the arrested drunk? Given.

Was the arrested in possession of a handgun?

Does the state need to prove if it was loaded or not?

When the dispatcher advises an Officer that the registered owner is an HCP holder; is it reasonable for the Officer to ask if there are weapons in the vehicle?

Is an HCP holder required (by law) to answer that question?

I guess my question is, what is the reasonable suspicion towards the passenger that turns the interaction into an investigatory one? Suspicion of underage drinking? Something else?

There is reasonable suspicious that the owner of the vehicle may be armed. Upon approach the Officer feels it is probably the passenger and asks the question about firearms.

I mean really are you really possessing the gun, locked in the trunk, unloaded, as far as the actual intent of the law?

There is no trunk (Suburban, SUV, or pick-up). It is accessible to passengers.

[mdlave]

When the dispatcher advises an Officer that the registered owner is an HCP holder; is it reasonable for the Officer to ask if there are weapons in the vehicle?

Gotcha, so the registration was in your name, thus the HCP flag.

I have a car with a trunk, so my weapon would (and has, in similar situations) gone in the trunk.

If you're willing to say no to a search request, it looks like the best answer is "I'm not sure" to the question about weapons in the vehicle.

If one is unwilling to deny a search request, say "Yes" and bend over and take it.

Edited October 5, 2008 by mdlave
Clarify response

[Oh Shoot]

...There is no trunk (Suburban, SUV, or pick-up). It is accessible to passengers.

Well, if you REALLY think this hypothetical is in the realm of the even unlikely possible, get one of them $40 Center of Mass lock cases and keep it in the vehicle. THAT's certainly an obvious statement of your intent "not to possess", certainly "not to go armed".

I'm thinking of getting one myself, but for more likely theticals

- OS

[DaveTN]

Gotcha, so the registration was in your name, thus the HCP flag.

I have a car with a trunk, so my weapon would (and has, in similar situations) gone in the trunk.

If you're willing to say no to a search request, it looks like the best answer is "I'm not sure" to the question about weapons in the vehicle.

If one is unwilling to deny a search request, say "Yes" and bend over and take it.

I think you are missing the point that the passenger is drunk.

Drunks are dumber than **** and will say anything. I can assure you that most of the time you can’t shut them up on a traffic stop… even when they aren’t the one being questioned.

[TripleDigitRide]

With all the LEO's who visit TGO, and none of them have a clear answer on this?

[saintsfanbrian]

Recent case law says you would not be arrested. Vince Young had an unloaded handgun in his car. It was in the glove compartment. He was not arrested because it is not against the law to have an unloaded gun in the car. I would use this in court if necessary since the gun was in a locked compartment in the back of the vehicle unloaded.

Could you be arrested? Yup.

Could you go to court? Yup.

But I think the DA would drop it before it could get that far.

[TripleDigitRide]

Looks like the only sure fire way to get a definitive answer is going to be by trying it out.

Please let us know how it turns out.

[Guest Revelator]

Under the law there are two types of possession--actual and constructive. This would fall in the constructive possession realm. Constructive possession is the power and intention at a given time to exercise dominion and control over [the weapon] either directly or through others. You will find that kind of language in numerous appellate court opinions. I disagree that the issue of intoxication is settled and possession is not. I think it's the other way around. You can say that for this hypothetical intoxication is given, but in a real world situation under these facts I'm not so sure. Unless the passenger starts babbling "I'm drunk, I'm drunk" or something like that. As for possession, look at it this way. Every day they stop vehicles and find drugs that are hidden in the trunk, or locked in a box or buried down in the luggage, or stuffed in secret compartments in the engine or the fuel tank, and those folks are arrested for possession. For the gun in this case, I think there's enough evidence for possession.

It doesn't matter if the gun is loaded or not. The law we're talking about doesn't make any distinction between loaded and unloaded. Had the legislature intended for "unloaded" to be a defense to prosecution, they would have put it in there.

It is reasonable for the officer to ask everyone if there are weapons. (The police can come up to you at any time, anywhere and ask that.) The officer could probably even get in a pat-down of everyone, even if the only evidence of illegal activity they have is speeding. If you're pulled over for speeding, they can ask you to step out of the car and do a pat down right there. They don't need permission, and anything they find is fair game. This goes in the category of officer safety. Courts have found that officer safety is a pretty compelling state interest and as such give the police a good bit more leeway in that area.

You're not required by law to really answer anything until you've been subpeoned and are on the stand.

[Im Neero]

Is the passenger in any way required to submit to any sort of sobriety test?

[DaveTN]

You're not required by law to really answer anything until you've been subpeoned and are on the stand.

HCP is not a right. Correct me if I am wrong but I thought you were required to show your HCP to a Police Officer on request. I would think that “Is there a weapon in the vehicle now?†would be the next logical question. Are you saying that you think you have a right to not answer that question and still have your HCP remain in good standing?

[Guest db99wj]

Even in a car the trunk is accessible, the seats on most cars fold down completely, so in essence, wouldn't that mean there is really no difference if it is a SUV or a car, either way you can crawl back to the back into the "trunk" area?

[DaveTN]

Is the passenger in any way required to submit to any sort of sobriety test?

I conceded the drunk part in this scenario because it isn’t even going to be an issue. They will probably put you on video or just use the Officers description. I’m wondering more about the possession part after the HCP holder being drunk has been established.