Alcohol & Firearms at Your House

[Thomas50]

I live in Ohio. I fully understand the laws regarding concealed carry and alcohol in my state - zero tolerance. You are not allowed to have access to your firearm when out at a bar or restaurant if you have any alcohol.

My question is about when I am at home. You see, I mostly carry even when at home, and when my firearm is not on my side, it is next to me in bed or in my safe. I also enjoy some beers on the weekend when at home watching ball games or whatever. There are times when I hear strange noises in my house or suspicious activity outside my house and go to investigate - almost always with my firearm on my side (not in hand).

My question is if I need to brandish the firearm to hold an intruder until police arrive or - God forbid - have to fire it for self-defense on my own property, and I have had a few beers,… am I in serious trouble even if it was a completely justified use of a firearm?

Do the Concealed Carry laws of Ohio carry over to your house? Meaning, am I NOT supposed to touch my firearm in my house - even when I feel threatened or am investigating suspicious activity on my property - if I have been drinking any alcohol?

I know everyone’s first response is “just call the cops”, but so far every time I did go investigate a suspicious noise or activity it was either pets, kids or something just fell in my house. If I called the cops EVERY time I needs to “check something out”, the cops would put me on a “do not repond” list

I’ve asked many gun groups on facebook and get so many mixed responses, but no one seems to know the exact law and they all have their own opinion of what they “think” the laws are.

Are there any attorneys or trainers out there who actually know the rules and laws of managing your firearm, under the influence of alcohol, at your own house? (and please note that this is for serious or real activities, I’m not sitting on my front porch drunk firing my weapon into the air for stupid fun)

[Dawn]

Welcome to the Community, @Thomas50.

I’m not an attorney and I didn’t stay at a Holiday Inn Express last night ;), but here is what I’ve heard from numerous attorneys over my years at USCCA - it will depend on a lot of factors.

How much have you had to drink, were you impaired, was the threat/attacker inside of your house? Every situation is different.

Clear as mud, right?

I know @MikeBKY is an attorney in a different state (not OH), and he occasionally responds to legal questions when he visits the Community. I’ll leave it up to him if he wants to weigh in.

I’ll ask @Tom_Grieve to peek at this as well when he gets a chance. Maybe he can add more clarity.

[MikeBKY]

@Thomas50 I do not know the answer to your question but I will take a look to give an idea of what the law is and how I suspect the police and/or courts would respond to it. It may take me a little time but I’ll let you know what I find.

[Thomas50]

Thanks Dawn! I know its a tricky question.

[Thomas50]

@MikeBKY - appreciate it. just to clarify, I know the alcohol will be a factor in the courts, I was more interested in the immediate charge - on the spot - by an officer at the scene. I assume with any firearm discharge that results in injury, the shooter is taken for a BAC test - does that factor into charges at that time even for a justified shooting? Then what if the firearm was never discharged (brandished to remove a threat from property), does that lessen the inquiry into the BAC on the scene?

I am VERY strict when I go out to restaurants or bars. If I even THINK I might order a beer or wine with dinner, i leave my weapon home. The problem is that I HATE leaving the weapon at home so i rarely drink when out. But at home, I crack open a couple of beers on a Friday night, but then get worried that I might get some sort of felony charge and lose my license if some asshole breaks into my house and makes me defend myself.

Luckily I have never had to ever come close to pulling my firearm and hope I never do (scary to think about), but my mind cant help but to ponder these things that very well may affect me and my families quality of life.

Thanks again for looking into this. I guess the bottom line is “If Im home and have had 3 beers, and someone breaks into my house,… should I grab my firearm to deter or defend or should I leave the firearm in the safe and grab a bat or just Steven Seagal the ■■■■ out of him so I dont automatically go to jail on the spot?”

[steven8]

Is Ohio a retreat or no retreat state. Find out and it will give you an answer

[Tom_Grieve]

Insert all the disclaimers here about me NOT being an Ohio attorney and therefore not being familiar with Ohio laws.

In Wisconsin, the laws concerning mixing alcohol and firearms are unfortunately (though predictably) confusing. The gist to them here is that you cannot be drinking in a bar/tavern while conceal carrying but otherwise as long as you are not impaired you are OK. Being OK does not mean you are clear from any trouble or gray area, it simply means that the government would need to find you materially impaired before charging you with a crime specific to being armed while intoxicated. It would not prevent them from using the presence of alcohol to somehow impute that the alcohol messed with your judgment otherwise. Additionally, the laws for “going armed while intoxicated” actually apply to being in your home, despite the fact that you didn’t “go” anywhere. Confusing, I realize.

Just reading the laws as they are written without understanding the case law that interprets them or the local justice system context that they are used in amounts to a, unfortunately, shallow and sometimes misleading comprehension of how this all works. Don’t shoot the messenger: I am not defending this reality, I am merely stating it from my experience.

Too long did not read: mix alcohol and firearms at your own risk and discretion, best case scenario.

[WildRose]

I doubt your CC statutes apply but in every state I know of there is a legal limit as to how much alcohol you can have in your system when possessing or using a firearm.

I think the doctrine of necessity would apply to a home intrusion you have to defend against but it puts you at a much higher risk of criminal liability if the case goes to a jury and most definitely if a civil suit is filed.

Maybe Mike can chime in.

[MikeBKY]

@Thomas50 I apologize for taking so long to respond. It’s crazy how sometimes work and family interfere with other things we want to do. As it turns out, Ohio has a specific statute and case law that addresses possession of a firearm while under the influence including for self defense. Based upon the authority cited below, the castle doctrine still supports the presumption that you do not need to retreat in defense of yourself, others or your home, however, you are still criminally culpable for carrying or using a firearm while intoxicated and will obviously face increased scrutiny in civil litigation relating to use of a firearm while intoxicated.

Hope this helps!

Ohio Revised Code Section 2923.15 Using weapons while intoxicated reads as follows:
(A) No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.
(B) Whoever violates this section is guilty of using weapons while intoxicated, a misdemeanor of the first degree.
ORC Ann. 2923.15
A Misdemeanor in the 1st degree punishable by up to 6 months in jail and/or a fine of up to $1000.

The question about defenses was raised in Columbus v. Still, where the court said:
"This section enacts a new prohibition against carrying or using any firearm or dangerous ordnance while intoxicated. The rationale for the offense is that carrying or using firearms or dangerous ordnance without having complete control of one’s faculties presents a danger as great as driving while intoxicated. In part, the section is also designed as a tool to permit law enforcement officers to step in and prevent the commission [*5] of more serious crimes, as well as tragic accidents. There is no exception to the prohibition–law enforcement officers, demolition experts, sportsmen, and others must all be sober at the time they carry or use firearms or dangerous ordnance.

We believe that the comment’s comparison of R.C. 2923.15 to the offense of driving while intoxicated to be appropriate as there exist several of the same public safety concerns involved with each offense. While R.C. 4511.19, the offense of driving while under the influence of alcohol or drugs, does not specify any degree of culpability, it has similarly been held to be a strict liability offense. State v. Grimsley (1982), 3 Ohio App. 3d 265; State v. Cleary (1986), 22 Ohio St. 3d 198.

Furthermore, it should be noted that R.C. 2923.12, HN4 the offense of carrying a concealed weapon, and R.C. 2923.13, the offense of carrying a weapon while under a disability, each expressly set forth the culpable mental state of “knowingly” as an element of the offense. However, R.C. 2923.15, enacted in the same legislation, contains no culpable mental state. Such an exclusion lends additional support to indicate the legislature’s intent to impose strict [*6] criminal liability. As we have determined that R.C. 2923.15 HN5 is a strict liability offense for which no culpable state of mind must be shown, defendant’s first assignment of error is not well-taken and is overruled.

In his second assignment of error, defendant argues that the trial court erred in refusing to give an instruction on self-defense. Defendant analogizes the present case to the circumstances in which the affirmative defenses of R.C. 2923.12© would be applicable. However, that section specifically states that:

HN6 “It is an affirmative defense to a charge under this section of carrying or having control of a weapon * * *.” (Emphasis added.)

The language of the statute is clear that HN7 those affirmative defenses enumerated in R.C. 2923.12© apply only to that section and are not available as a defense to a charge of using a weapon while intoxicated under R.C. 2923.15. Cf. State v. Winkelman (1981), 2 Ohio App. 3d 465, 469-470. Had the legislature intended to allow the affirmative defense of self-defense to be available to an individual charged with violating R.C. 2923.15, it could easily have done so as it did with R.C. 2923.12. Again we refer to the official [*7] comment to R.C. 2923.15, highlighting the last sentence:

“There is no exception to the prohibition–law enforcement officers, demolition experts, sportsmen, and others must all be sober at the time they carry or use firearms or dangerous ordnance.”

Even law enforcement officers, charged with maintaining public safety, must be sober when carrying a firearm. Accordingly, we find defendant’s second assignment of error to be without merit and it is therefore overruled.
Columbus v. Still, 1989 Ohio App. LEXIS 2625, *4-7, 1989 WL 71610

The issue of the castle doctrine is addressed in State v. Weber. The Court specifically states that the presumption of the castle doctrine still exists, however, the use of the firearm by an intoxicated person is still a crime under ORC 2923.15.

[*P40] Finally, we address appellant’s argument that R.C. 2923.15 is in conflict with the castle doctrine. Appellant asserts that under R.C. 2923.15, an intoxicated person, while in his home, would never be [**19] able to use a firearm to defend himself or his family.

[*P41] HN17 R.C. 2901.09(B) “codifies a form of self-defense as the castle doctrine” and states that “a person who lawfully is in that person’s residence has no duty to retreat before using force in self-defense, defense of another, or defense of that person’s residence[.]” State v. Barnette, 12th Dist. Butler No. CA2012-05-099, 2013-Ohio-990, ¶ 56. Similarly, R.C. 2901.05(B)(1) provides that a defendant is entitled to a presumption of “self-defense or defense of another” if the evidence shows that the defendant used defensive force against another person who was “in the process of unlawfully and without privilege to do so entering, or ha[d] unlawfully and without privilege to do so entered” the defendant’s residence or vehicle.

[*P42] Nothing in R.C. 2923.15 circumscribes the availability of the castle doctrine. The castle doctrine simply creates a presumption that the defendant acted in self-defense when he or she uses deadly force against a person who has entered or is entering the defendant’s home or vehicle without privilege to do so. The doctrine remains available to an intoxicated person using defensive force with a firearm in defending himself or another in his residence or vehicle. Whether such would [**20] violate R.C. 2923.15 is a different matter and is no different than when a defendant under disability exercises his rights under the castle doctrine. R.C. 2923.15 therefore does not conflict with the castle doctrine.

[*P43] In light of the foregoing, we find that appellant’s conviction is not contrary to law and that R.C. 2923.15 does not violate the Ohio or federal Constitutions.

State v. Weber, 2019-Ohio-916, P40-P43, 2019 Ohio App. LEXIS 979, *18-20, 2019 WL 1254198

[MikeBKY]

Ohio has codified the castle doctrine and there is no duty to retreat. That does not change their statute on the carrying or use of firearms while intoxicated, inside or outside the home.

[Thomas50]

@MikeBKY - Thanks so much for the detailed response. That was a lot to digest, but you summed it up pretty well in your last response - “Ohio has codified the castle doctrine and there is no duty to retreat. That does not change their statute on the carrying or use of firearms while intoxicated, inside or outside the home.”

The wording is very specific to firearms or other ordinances…
“No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.” Do you know if this also covers other ‘weapons’ such as a baseball bat? And please understand that I mean the use of ‘reasonable’ aggression against an attacker - not bludgeoning them to death with a bat for breaking into my house.

My reason for asking this question was to know what options I would have after consuming a 6 pack and needing to defend myself at home. Outside of the old motto “better to be judged by 12 than carried by 6”… and “just call the cops and hide/wait”… sounds like something like a baseball bat might be the most ‘legal’ option to keep me out of jail and going to court? or maybe a stun gun or something non-lethal?

Again, it really pisses me off that I could be forced into this situation by a criminal looking to do harm, and I need to be careful how I protect myself - but i understand why the law is in place. I also understand that it is a very gray area and could go either way in the court of law.

I guess if you are a firearm owner, the best option is to just not ever drink. Sounds like a boring way to watch my Tennessee Vols football games this fall, but it might be the smartest option to be prepared for that ONE time you need to react to unprovoked violence.

Thanks again for your response… it is much appreciated!!

[David38]

@Thomas50

I guess if you are a firearm owner, the best option is to just not ever drink

Or have a designated shooter???

[MikeBKY]

I think the best answer is to know your limits and not overindulge. Here’s the definition of dangerous ordnance.

(K) “Dangerous ordnance” means any of the following, except as provided in division (L) of this section:

(1) Any automatic or sawed-off firearm, zip-gun, or ballistic knife;

(2) Any explosive device or incendiary device;

(3) Nitroglycerin, nitrocellulose, nitrostarch, PETN, cyclonite, TNT, picric acid, and other high explosives; amatol, tritonal, tetrytol, pentolite, pecretol, cyclotol, and other high explosive compositions; plastic explosives; dynamite, blasting gelatin, gelatin dynamite, sensitized ammonium nitrate, liquid-oxygen blasting explosives, blasting powder, and other blasting agents; and any other explosive substance having sufficient brisance or power to be particularly suitable for use as a military explosive, or for use in mining, quarrying, excavating, or demolitions;

(4) Any firearm, rocket launcher, mortar, artillery piece, grenade, mine, bomb, torpedo, or similar weapon, designed and manufactured for military purposes, and the ammunition for that weapon;

(5) Any firearm muffler or suppressor;

(6) Any combination of parts that is intended by the owner for use in converting any firearm or other device into a dangerous ordnance.

(L) “Dangerous ordnance” does not include any of the following:

(1) Any firearm, including a military weapon and the ammunition for that weapon, and regardless of its actual age, that employs a percussion cap or other obsolete ignition system, or that is designed and safe for use only with black powder;

(2) Any pistol, rifle, or shotgun, designed or suitable for sporting purposes, including a military weapon as issued or as modified, and the ammunition for that weapon, unless the firearm is an automatic or sawed-off firearm;

(3) Any cannon or other artillery piece that, regardless of its actual age, is of a type in accepted use prior to 1887, has no mechanical, hydraulic, pneumatic, or other system for absorbing recoil and returning the tube into battery without displacing the carriage, and is designed and safe for use only with black powder;

(4) Black powder, priming quills, and percussion caps possessed and lawfully used to fire a cannon of a type defined in division (L)(3) of this section during displays, celebrations, organized matches or shoots, and target practice, and smokeless and black powder, primers, and percussion caps possessed and lawfully used as a propellant or ignition device in small-arms or small-arms ammunition;

(5) Dangerous ordnance that is inoperable or inert and cannot readily be rendered operable or activated, and that is kept as a trophy, souvenir, curio, or museum piece.

(6) Any device that is expressly excepted from the definition of a destructive device pursuant to the “Gun Control Act of 1968,” 82 Stat. 1213, 18 U.S.C. 921(a)(4), as amended, and regulations issued under that act;

(7) Any firearm with an overall length of at least twenty-six inches that is approved for sale by the federal bureau of alcohol, tobacco, firearms, and explosives under the “Gun Control Act of 1968,” 82 Stat. 1213, 18 U.S.C. 921(a)(3), but that is found by the bureau not to be regulated under the “National Firearms Act,” 68A Stat. 725 (1934), 26 U.S.C. 5845(a).

ORC Ann. 2923.11

[Craig6]

I would submit that if you are forced to defend your self and home and you fave been drinking that you have an emergency bottle of “pick a booze” so that when the police enter you have a partially consumed glass in your hand and that you take a drink in front of them. You can tell them that after I shot him/her/it that I poured myself a drink to calm my nerves as I was in fear of my life. At that point the only thing the police can attest to is that they saw you consume ETOH after the shooting. Not a lawyer, all disclaimers apply, but I would like to here what the two here have to say about that strategy.

Cheers,

Craig6

[Dawn]

@Craig6

I would submit that if you are forced to defend your self and home and you fave been drinking that you have an emergency bottle of “pick a booze” so that when the police enter you have a partially consumed glass in your hand and that you take a drink in front of them. You can tell them that after I shot him/her/it that I poured myself a drink to calm my nerves as I was in fear of my life. At that point the only thing the police can attest to is that they saw you consume ETOH after the shooting. Not a lawyer, all disclaimers apply, but I would like to here what the two here have to say about that strategy.

I would highly discourage this sort of suggestion. Not only does it imply that you are willing to lie to the police about what happened during your self-defense incident, you’ve also thought about it during your training. The prosecuting attorney will wonder else have you lied about or planned on lying about to the police?

[WildRose]

Actually no, you would not have to lie at all, you are not required and cannot be compelled to give testimony against yourself.

“I had a few drinks after the event”. But sir, did you have any drinks prior? “I’m not going to answer that”.

Personally if I’m in a life or death fight in my own home whether I’d had one drink too many is going to be the least of my concerns and considerations.

If you had a couple of drinks at dinner and wake up a few hours later in the midst of a home invasion with your life and the lives of your kids on the line are you going to defend yourself or worry about whether you’ve maybe had one drink too many and might fail a breathalyzer?

[MikeBKY]

I agree with both @Dawn and @WildRose on this. Do not set up an explanation and, under no circumstances, do you discuss what happened with the police until your attorney is present. For several years, I was a licensed attorney and was still working with the sheriff’s office which actually created some interesting ethics questions, but, even then I told people, not people I was interacting with in a law enforcement capacity, that there is rarely ever a good reason to talk to the police unless you are the victim reporting the crime, and even then, be careful what you say.

[WildRose]

I’m trying Mike to figure out a situation in which the police would even be aware you might be slightly over the limit unless you were dumb enough to tell them to start with?

I know in many states there’s no probable cause or even “reasonable suspicion” to automatically have someone brethalyzed or blood tested simply because they’ve been in a defensive shooting.

I could see that if you were obviously impaired, stumbling around, slurring your words etc that they’d have RAS or even PC for testing but other than that?

It also seems to me that as long as it was a good shoot and your claim of SD was supported by the initial investigation you’d probably be hard pressed to find a cop or prosecutor in most jurisdictions to push it.

[MikeBKY]

You are right, if it was a good shot, there probably not be much said. But there are telltale signs of intoxication, even if only slightly impaired. The obvious are slurred speech, glassy eyes, unsure steps and the odor of alcoholic beverages but they do not mean that you are impaired or that you were impaired at the time of the incident or that you would be impaired if and when they took you for some type of testing.
You know an even more likely occurrence will be someone who is awoken at night to the sound of an intruder and being under the influence of very legal prescription medications that can have the same or worse effects than alcohol. A few weeks ago my back went out and I was taking muscle relaxers for a couple days. They didn’t help so i stopped after 2 days. But, what if it had been a muscle relaxer along with hydrocodone or Oxycontin? Even therapeutic levels could cause impairment. But if it’s a good stop, should it matter?

[WildRose]

You’re taking me full circle again.

If someone breaks into my home and threatens my life or the lives of my family the last thing on my mind is going to be "Hey, have you had too much benadryl? Too much Flexiril? Did you have 2 fingers of Scotch or three? How many hours has it been since my last drink?

My first thought is going to be, “What do I have to do to make sure we all survive and that I stop the bad guy/guys”.

If I had a serious concern afterward I might have to have a few cups of coffee to wake up enough to remember to call 9-11 in an hour or two.