Recent "Carport Break In" Riverside Plantation, West Nashville

[chances R]

JayC, yes I understand but there is a difference between consumption vs. influence.  Again I will let someone else clarify that at their peril.  As an instructor I am not going to increase my liability by saying any amount of alcohol would be acceptable.  I can see it now, a former student before the judge and jury saying that their instructor told them that they could go ahead and have a beer or two and nobody would care.

[DaveTN]

There is case law on being 'under the influence' of alcohol back before the MADD crappy laws were passed, there were a number of cases where BAC levels were argued in front of judges, and there are ruling from those cases that would still stand today...

If they are cases that address carrying a gun; give us case name. If they pertain to DUI; they are irrelevant.
 

More importantly, 39-17-1321a clearly does not prohibit all consumption of alcohol while carrying.

Certainly it does. There is no requirement for impairment; only “under the influence”. If the cop thinks you have been drinking and wants to charge you; that is what will happen.
 

but lets not scare otherwise law abiding citizens that they can't carry a gun because they had a sip of beer at home 2 hours ago ;)

Why not; that’s the law? (if the Officer can tell you have been drinking)

However they shouldn’t be scared based on what someone tells them; they should read the law and make an informed decision since they will be the one paying the price.
 

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, 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.

Edited May 5, 2016 by DaveTN

[JayC]

I think an ADA would have a hard time proving that 'under the influence' of alcohol for motor vehicles before the legislature fixed a BAC level, would be somehow be different than 'under the influence' for carrying a gun before the legislature has set any BAC limits.

 

But here is the most important part, there is NO IMPLIED CONSENT when carrying a handgun in state law. That means the officer, can't force you to take a field sobriety test, they can't force you to give a BAC, nor can they force you to give blood under current state law, unless they're also trying to add the charge along with drunk driving.  Also, good luck finding a hospital that will do the blood draw because they have no safe harbor from civil liability under state law.

 

So unless you agree to one of the above, they're going to have to base the arrest solely on watching you in an uncontrolled environment...  that is going to be a really tough case to prove.

 

Finally, while we don't have any case law on 39-17-1321, that cuts both ways...  most of the permits we see revoked each year have to do with Class A charges from DUI's...  Yet we haven't seen a single conviction under 39-17-1321...  what are the chances out of all of those cases none of those permit holders had a gun with them?

 

If they are cases that address carrying a gun; give us case name. If they pertain to DUI; they are irrelevant.
 
Certainly it does. There is no requirement for impairment; only “under the influence”. If the cop thinks you have been drinking and wants to charge you; that is what will happen.
 
Why not; that’s the law? (if the Officer can tell you have been drinking)

However they shouldn’t be scared based on what someone tells them; they should read the law and make an informed decision since they will be the one paying the price.
 

[DaveTN]

I think an ADA would have a hard time proving that 'under the influence' of alcohol for motor vehicles before the legislature fixed a BAC level, would be somehow be different than 'under the influence' for carrying a gun before the legislature has set any BAC limits.

But here is the most important part, there is NO IMPLIED CONSENT when carrying a handgun in state law. That means the officer, can't force you to take a field sobriety test, they can't force you to give a BAC, nor can they force you to give blood under current state law, unless they're also trying to add the charge along with drunk driving. Also, good luck finding a hospital that will do the blood draw because they have no safe harbor from civil liability under state law.

So unless you agree to one of the above, they're going to have to base the arrest solely on watching you in an uncontrolled environment... that is going to be a really tough case to prove.

The fixed level of BAC is the legal standard for IMPAIRED. 39-17-1321 does not require that you be impaired; only under the influence. You are making the same mistake kids make when they say “I wasn’t drunk” after being charged with DUI. You don’t need to be falling down drunk to be impaired per the dui laws and you only need to be about .02% to be under the influence. .08 is a legal presumption; some states allow DUI convictions at much lower BAC levels with supporting evidence.

I don’t know why you think it would be a hard conviction without implied consent or BAC testing. It’s done every day in DUI cases with a much higher standard when dealing with those who refuse.

Here is what the Appeals Court at Jackson had to say about it in STATE OF TENNESSEE v. DONALD STEVE SIKES.
 

To find the defendant guilty of the unlawful possession of a handgun while under the influence of alcohol, the jury had only to find:

1) that he had possession of a handgun, and
2) that he was under the influence of alcohol.

Viewed in the light most favorable to the State, the evidence in this case was sufficient to support the defendant’s conviction of this offense. The defendant admitted at trial that he had the handgun with him and that, while at the drive-through window, he moved it from its location by his side to the glove compartment of his truck. Church’s Chicken employee Melissa Ray, who engaged the defendant in conversation until the police arrived, testified that, based on his demeanor and attitude, the defendant appeared to have been drinking. Officers French and Manaseri testified that there was a “strong odor” of alcohol about the defendant, that his eyes were red and bloodshot, and that his speech was slurred. In addition, although no blood alcohol or Breathalyzer tests were performed, the defendant admitted to Officer French that he had been drinking. Thus, sufficient evidence was presented from which the jury could find that the defendant met both elements of the offense of possession of a handgun while under the influence of alcohol.
This issue is without merit.

Finally, while we don't have any case law on 39-17-1321, that cuts both ways... most of the permits we see revoked each year have to do with Class A charges from DUI's... Yet we haven't seen a single conviction under 39-17-1321... what are the chances out of all of those cases none of those permit holders had a gun with them?

I can’t comment on that; I don’t have access to search case law. Where do you do it? It’s also been a long time since I’ve seen access to the specific people and why they were suspended, revoked, or refused. Is that still available somewhere?

However, the bottom line is this: If people want to know if they can legally drink while they are carrying; the answer is “No” and the law is clear. They can read the law right here in this thread and make the determination if it applies to them. For a person teaching a training class to answer that they would need to be proven to be impaired would be wrong. Explaining it any other way in a class would not be doing the class justice. Unless the class was on how to be a test dummy for the legal system.

[Oh Shoot]

....

However, the bottom line is this: If people want to know if they can legally drink while they are carrying; the answer is “No” and the law is clear. .

 

Clear huh?

 

Again, 39-17-1321 makes a distinction between a permit holder drinking in a public establishment and being under the influence there, with separate penalties for each situation. If the intent of the statute was that simply drinking any alcohol at all was sufficient to be under the influence, there would be no need for the "if" in relation to the being under the influence part.

 

- OS

[DaveTN]

Clear huh?
 
Again, 39-17-1321 makes a distinction between a permit holder drinking in a public establishment and being under the influence there, with separate penalties for each situation. If the intent of the statute was that simply drinking any alcohol at all was sufficient to be under the influence, there would be no need for the "if" in relation to the being under the influence part.
 
- OS

Crystal clear to me. Read (a) and stop. There you have your answer.
(B simply removes the “under the influence” requirement and tells you can’t carry and drink in a bar; not a sip and removes any “under the influence requirement” Someone calls the cops and tells them you are standing at the bar drinking while carrying a gun. They walk in and see you drinking; game over.

[Oh Shoot]

Crystal clear to me. Read (a) and stop. There you have your answer.
(B simply removes the “under the influence” requirement and tells you can’t carry and drink in a bar; not a sip and removes any “under the influence requirement” Someone calls the cops and tells them you are standing at the bar drinking while carrying a gun. They walk in and see you drinking; game over.

 

Nope.

 

Illegal to drink in public establishment while carrying. One penalty.

 

IF ALSO under the influence, a separate offense, additional penalty.

 

Ergo, you can be culpable for the first condition but not for being under the influence.

 

- OS

[DaveTN]

Nope.
 
Illegal to drink in public establishment while carrying. One penalty.
 
IF ALSO under the influence, a separate offense, additional penalty.
 
Ergo, you can be culpable for the first condition but not for being under the influence.
 
- OS

"a" has no requirement that you be in a bar. Or even in public. Edited May 6, 2016 by DaveTN

[dralarms]

So what you are saying is that I can't have a glass of wine in my own home unless I lock my gun up? Let them try and enforce something like that.

[chances R]

Nope, nobody said that at all.  You are on much more defensible ground in your own home IF everything is legit and you are not drunk.  Alcohol always has the chance to alter outcomes, especially where firearms are concerned.  But one footnote; if you drink at home and then leave you are at some risk should you have an encounter with LE.  The potential is there to be   ' under the influence'.  No different from leaving the bar, or even your home after taking something like a narcotic and then driving.

[Oh Shoot]

"a" has no requirement that you be in a bar. ....

 

No but it does have to occur there to incur the additional penalty of losing your HCP for three years instead of just the one for a Class A meanor conviction.

 

- OS

Edited May 7, 2016 by Oh Shoot

[dralarms]

Well if someone wants to arrest me, I'll be sitting here having a glass of wine with my trusty sidearm well within reach. :D

[DaveTN]

No but it does have to occur there to incur the additional penalty of losing your HCP for three years instead of just the one for a Class A meanor conviction.
 
- OS

Yes, if you aren’t in a bar you will lose your permit for the amount of time from your conviction to whenever you have met all the requirement of the court; probation, paid fines, etc. If you are convicted of being in a bar; it’s at least 3 years.

But I really wasn’t addressing any of that. I was merely saying that it’s illegal to be “under the influence” and carry. There is no requirement for the state to prove you were impaired. In a bar it doesn't even require you to be "under the influence"; only consuming.

[DaveTN]

So what you are saying is that I can't have a glass of wine in my own home unless I lock my gun up? Let them try and enforce something like that.

  

Well if someone wants to arrest me, I'll be sitting here having a glass of wine with my trusty sidearm well within reach. :D

It would only be an issue if the Police were standing in your home for some reason.

Just like DUI I see no exception for private property. Is it an issue? No, it’s just another charge if they are already there for something else. Neighborhood situation, Domestic Violence, most any other type of investigation, etc.

[JayC]

The critical thing to remember is, there is no implied consent...

 

You don't have to perform a field sobriety test, blow in a breathalyzer, or provide a blood/urine sample...  most importantly you don't have to say a word.  Unless you're full out drunk, it's going to be a tough road to prove in our you were under the influence if you don't say anything and refuse any tests.

 

And while they might threaten to drag you to a hospital and perform a blood draw, state law only allows them to do that for operating a motor vehicle, not carrying a firearm.   They would need to get a full on search warrant to collect any evidence from you.

 

Again, nobody is suggesting that you should be drinking and carrying a gun, but a single beer or glass of wine likely doesn't violation the law - no case law to indicated either way - and you'd be hard pressed to get arrested for it if you don't do any of the above even if they're looking for a reason.  Of course, one drop while you're in a restaurant and you'll loose your permit for 3 years.

 

  
It would only be an issue if the Police were standing in your home for some reason.

Just like DUI I see no exception for private property. Is it an issue? No, it’s just another charge if they are already there for something else. Neighborhood situation, Domestic Violence, most any other type of investigation, etc.

[DaveTN]

The critical thing to remember is, there is no implied consent...

We all understand that, and it does not matter; nothing critical about it.
 

You don't have to perform a field sobriety test, blow in a breathalyzer, or provide a blood/urine sample... most importantly you don't have to say a word. Unless you're full out drunk, it's going to be a tough road to prove in our you were under the influence if you don't say anything and refuse any tests.

And while they might threaten to drag you to a hospital and perform a blood draw, state law only allows them to do that for operating a motor vehicle, not carrying a firearm. They would need to get a full on search warrant to collect any evidence from you.

Again, nobody is suggesting that you should be drinking and carrying a gun, but a single beer or glass of wine likely doesn't violation the law - no case law to indicated either way - and you'd be hard pressed to get arrested for it if you don't do any of the above even if they're looking for a reason. Of course, one drop while you're in a restaurant and you'll loose your permit for 3 years.

JayC, as a former cop I can assure you people that have been drinking can’t remain silent, of course they have the right; they don’t have the ability. Anyone that’s worked the streets will tell you the same thing.

We are also discussing situations where your actions caused the Office to think you are drinking and carrying a gun. No field sobriety tests, no urine tests, none of that. Just you and the cop standing in front of a Judge or jury telling what they observed. Of course you won’t be saying anything, so it will be a pretty one sided story.

At that point it’s really immaterial; most folks would rather just know that in Tennessee it’s against the law to drink and carry a gun; they aren’t interested in being a test case.

[Oh Shoot]

....

... Of course, one drop while you're in a restaurant and you'll loose your permit for 3 years.

 

No, the three year suspension is for being deemed also under the influence there, not for the one drop.

 

- OS

[JayC]

Dave,

 

I think you're flat out wrong...  You can have a drink of alcohol and not be 'under the influence of alcohol'.

 

Websters Dictionary -under the influence:

"affected by alcohol: DRUNK - was arrested for driving under the influence"

 

Black's Law Dictionary 2nd Edition defines 'under the influence of alcohol' to be:

"The term applied to a person who has ingested alcohol to render them incapable of discretion and sound judgement."

 

Very few adults are rendered incapable of discretion and sound judgement from drink a single beer.  While I agree most people who are drunk or have had a few might well have problems remaining silent, you're basically saying a single sip of alcohol makes you 'under the influence' and is therefore illegal.  And that just doesn't meet the common definition of 'under the influence' as commonly used today - or in the more recent past when that section of the law was last updated by the legislature.

 

Again, it's NOT against the law to drink and carry a gun, unless you're in an establishment that serves alcohol and drink inside that establishment.  In general it's only against the law in TN to drink to the point you're 'under the influence' of alcohol and carry a gun.

 

Now, I personally don't drink, haven't for years, not because I have a problem but because I just don't like to...  And I think we can all agree that none of us want somebody who is drunk, or even 'buzzing' to be wondering around with a loaded handgun on them, and very likely in those situations those folks are breaking the law as we understanding it.  

 

But, lets not scare people with trying to say a single sip of alcohol in your home while carry a firearm is illegal, because that just isn't what state law says...  nor does it say after you've had that single sip of alcohol you can't go outside armed either.  But that being 'under the influence of alcohol or a controlled substance' while carrying a handgun is a crime.

 

Now, the funny thing is, if you want to be armed take a rifle with you, because there is no law against being drunk and having a rifle in your possession :)  And as long as your the passenger in the vehicle, you can have an open beer and a loaded rifle in your lap in TN, and there is nothing anybody can do about it :)

 

We all understand that, and it does not matter; nothing critical about it.

JayC, as a former cop I can assure you people that have been drinking can’t remain silent, of course they have the right; they don’t have the ability. Anyone that’s worked the streets will tell you the same thing.

We are also discussing situations where your actions caused the Office to think you are drinking and carrying a gun. No field sobriety tests, no urine tests, none of that. Just you and the cop standing in front of a Judge or jury telling what they observed. Of course you won’t be saying anything, so it will be a pretty one sided story.

At that point it’s really immaterial; most folks would rather just know that in Tennessee it’s against the law to drink and carry a gun; they aren’t interested in being a test case.

Edited May 8, 2016 by JayC

[JayC]

You're right OhShoot, I misspoke.  You'd only loose your permit for the length of the Class A misdemeanor.  I stand corrected.

 

No, the three year suspension is for being deemed also under the influence there, not for the one drop.

 

- OS

[chances R]

 

Again, it's NOT against the law to drink and carry a gun, unless you're in an establishment that serves alcohol and drink inside that establishment.  In general it's only against the law in TN to drink to the point you're 'under the influence' of alcohol and carry a gun.

 

Now, I personally don't drink, haven't for years, not because I have a problem but because I just don't like to...  And I think we can all agree that none of us want somebody who is drunk, or even 'buzzing' to be wondering around with a loaded handgun on them, and very likely in those situations those folks are breaking the law as we understanding it.  

 

But, lets not scare people with trying to say a single sip of alcohol in your home while carry a firearm is illegal, because that just isn't what state law says...  nor does it say after you've had that single sip of alcohol you can't go outside armed either.  But that being 'under the influence of alcohol or a controlled substance' while carrying a handgun is a crime.

 

Now, the funny thing is, if you want to be armed take a rifle with you, because there is no law against being drunk and having a rifle in your possession :)  And as long as your the passenger in the vehicle, you can have an open beer and a loaded rifle in your lap in TN, and there is nothing anybody can do about it :)

 

And of course this is the internet, and one can find all sorts of positions and opinions, but I hope no one takes the above as gospel without consulting their attorney.....and having his phone number handy.  It may prove to be expensive in proving JayC correct.

[JayC]

IANAL but the plain reading of the law is very clear, and there are no cases that anybody can cite where somebody wasn't completely drunk getting charged under this law.

 

I've never seen anybody suggest that a single sip on alcohol means you're 'under the influence' of it.  Not even the scary (and bad) video from TDOS suggests that any level of consumption in general is unlawful.  Only in relationship to drinking in a public establishment.

 

I'm all for being a law nazi, remember I'm the one that complains that under current state law you are committing a felony if you happen to be carrying in a restaurant and the local school cross country is holding having dinner in the back room.  Now that is a scary bad law ;)  But even I'll admit nobody has ever been charged, and the chances that it happens to you are virtually zero.

 

If your interpretation that a single sip of alcohol while carrying is a violation of the law, then we should work to change the law because it's overly broad.

 

Either way I'm not going to be the test case, because I don't drink.

 

And of course this is the internet, and one can find all sorts of positions and opinions, but I hope no one takes the above as gospel without consulting their attorney.....and having his phone number handy.  It may prove to be expensive in proving JayC correct.