Ask an Attorney: Under the Influence

In conjunction with the yesterday’s What would you do post, here’s some guidance for you when you’re carrying and there’s a possibility of being under the influence and what it means to be under the influence.

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As a retired LEO, LEOSA prohibits you from carrying while under the influence. Kentucky law does not specifically prohibit carrying while intoxicated, however, the courts have supported both misdemeanor and felony wanton endangerment charges for carrying while intoxicated, especially if the weapon leaves the holster.

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Illegal or not, it’s a very bad idea. Never an issue for me as I don’t drink or otherwise ingest any intoxicants.

Regards.

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Really good subject. Most people don’t even begin to consider prescription or OTC med’s in terms of legal impairment unless the bottle comes with specific warnings and often not even then because you take the med’s for a while, decide they are having no negative effects on you because you cannot see or feel them but indeed you are impaired.

Maybe more importantly even if you are as he puts it strictly within the letter of the law on alcohol consumption all it takes is one overly aggressive prosecutor and a couple of well coached cops testifying against you to convince a jury you were impaired and thus you are found guilty.

You can search around on YouTube and find many stories where police were caught flat out lying on DUI stops claiming you were impaired when you were not and even when you pass a breathalizer the people were arrested, charged, and either found guilty or charged to the max and forced to take plea deals to avoid serious prison time which can still cost you not only your carry permit but your Right to Keep and Bear Period.

If you’re carrying be a saint and don’t hold yourself to the “reasonable person standard”, hold yourself to the “reasonable and prudent standard” which is much, much higher.

Even beyond the legal problems, you would never want to find yourself involved in a deadly force encounter and then have to live with the doubt of whether or not you actually acted appropriately after leaning you were, or probably were legally impaired at the time.

Fortunately in many states there is no automatic drug and alcohol testing done for people involved in a self defense incident, and they can only upon probable cause obtain a warrant for a blood draw.

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Anybody have Missouri specific information in this topic?

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If we have it, it will be on our Reciprocity map:

If we don’t have it and you would like it, please give leave that feedback on this topic that I just posted:

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Dawn, thanks for your post. It answers my questions.

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This is a topic that I am extremely sensitive to and I feel I am fully justified in my opinion. Once you carry concealed, including off-duty LEOs, you should NEVER consume any form of alcohol while carrying. If you want to drink, ensure you weapon is in a locked safe where you cannot get to it (not your auto, trunk, etc), but at home in a locked safe. There should also be specific laws regarding alcohol consumption for LEO’s, in my heart I feel anyone with a firearm shouldn’t even have a sip of anything alcoholic for any reason because once you take that first beer, glass of wine, or drink, you are technically headed to being unsafe with a firearm. I know there are many many cop bars that LEO’s go to after a hard day at work to blow off some steam but does each cop have a designated driver to take them home after they down a few? Highly unlikely and this is so immoral I won’t even go into it. I think every LEO AND concealed carrier who discharges a weapons should automatically be blood tested to ensure they have no legal or illegal substances in their body which could have affected their decision making skills before or after the shooting.

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I’m going to play devils advocate here. :slight_smile: please know, that doesn’t mean I’m disagreeing with you, I just want to point out other things to consider to help you strengthen or change your view after you’ve considered them. I’m not trying to sway your opinion. :slight_smile:

What about when your at home and have had a gin and tonic (one of my fav summer drinks) and someone breaks into your home and comes after you with a knife? Would you be justified in getting your firearm out and defending yourself in your home even though you’ve had a drink?

Would you include caffeine as a substance that changes your decision making skills or altering your mental state? What about anti-anxiety medication?

What about the 300 lb guy who had a Coors light? How much would that one been affect him?

Everyone’s body chemistry is different. I have a friend who doesn’t even need a local for stitches because her body doesn’t register the pain. I have another friend who could have enough morphine that would put the “normal” person into a sky-high state and he doesn’t feel it at all. How do you take those differences into account in the absolute of drug testing?

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I certainly understand all of your points, however, in my own personal opinion, a responsible concealed carrier should never drink and as a parent I also feel just as strongly, alcohol impairs everyone to some degree and once impaired we never react the same way, especially under a stressful situation like a break-in or child emergency, if a driver gets into a motor vehicle accident and there is a fatality, then blood samples to determine legal or illegal substances is mandatory, as I believe they should be for LEOs and concealed carriers. Again, just my personal opinion, when I became a father my responsibility level went up 100 fold, same as when I first started carrying concealed.

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@Dawn When I take my 2 heart medications I’m fine everything is cool but after I take my Asthma spray not so much it makes me feel light headed for a few minutes. I really don’t like the sensation but I like breathing so I put up. Getting older bites.

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Dawn, I did notice a couple of things about Louisiana. It says they are issued by the DMV, this is incorrect. Louisiana State Police handle the CHL. http://www.lsp.org/handguns.html

As far as alcohol and restaurants, you Reciprocity is close, but LA is funny.

“Any portion of the permitted area of an establishment that has been granted a Class A-General retail permit, as defined in Part II of Chapter 1 or Part II of Chapter 2 of Title 26 of the Louisiana Revised Statutes of 1950, to sell alcoholic beverages for consumption on the premises”

The best way I have heard it explained, is you can carry in a restaurant that also serves alcohol, but you might get in some trouble if you carry to a bar that serves food… And you can’t sit in the bar section of one.

Another thing about alcohol is your map says can’t carry if impaired. The legal limit for DUI is .08% BAC, but you can’t carry if you are at .05% BAC…

“A permittee may not carry and conceal a handgun while under the influence of alcohol or a controlled dangerous substance (CDS) as defined in R.S. 40:961 and 964. For purposes of the concealed handgun law, a permittee is considered under the influence of alcohol when a blood alcohol reading of .05% or greater by weight of alcohol in the blood is obtained, or a blood or urine test shows any confirmed presence of a CDS.”

LOL, well you asked for feedback… :grinning:

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@Dawn

Oops, you had it right, Department of Public Safety does issue them, the State Police would probably be under them.

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Definitely! I’ve sent this to our Laws expert for her review and updating our page as needed!

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As a retired veteran of 24 years service on land and sea, I appreciate profoundly Dawn’s perspective. There are many vets in our communities that live daily with pain from service or combat related injuries who, under the supervision of health care professionals, use legally prescribed medications one or more times a week to manage day to day discomfort and break through pain that other tools do not effectively control. These individuals maintain active rolls in their communities through paid and volunteer work. Many in this group legally own and carry firearms, concealed and open, in daily life. They also exercise great responsibility and sound judgement in doing so. They are not impaired by default for using medication as prescribed.

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IMHO in public if you carry you should not drink. If you are taking prescription meds that will “pop” on a standard 7 panel UDS (Urine Drug Screen) or you are in a state where puff a luffing stuff is legal and you have participated as recently as 30 days ago you might want to think about not carrying. If you are on anti-depressants or pick a psychotropic drug you are going to have a higher burden of proof than those not on such meds.

To @Dawn 's point. If I am still of semi right mind and had been drinking at home prior to the incident, after running through the USCCA post incident list of to do’s the police will arrive to find me with a large partially consumed scotch in my hand. They can ask me to put down the drink after they have seen me take a drink and I will but only after. Not sure of the legalities but in the medical world if you are under the influence of any of the above you are not “competent to sign” consents or anything else, it stands to reason that your “statement” may fall under the same idea. Not a lawyer so I’m not sure how that will play but at least I have a leg to stand on with a + BAC.

Food for thought, worth what you paid for it.

Cheers,

Craig6

Brian, welcome aboard! Did 24 myself as you say “on land & sea”. Chief? Gunny?

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Bonnie thanks you, @Fred_G! She updated the page. :slight_smile:

There are so many laws to track and decipher, she does an amazing job! Extra eyes are always helpful too!

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A frequent quote from me you’re welcome to use Robert, “The only thing worse than getting old is the alternative”.

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Fortunately in most states being involved in a self defense shooting does not give them probable cause to test you for impairment unless they have RAS based on your behavior at the scene.

If you’re forced to act in your own defense at home unless youre stoned out of your gourd or falling down drunk they’d be hard pressed to make a case against you due to the “Reasonable Person” and “doctrine of necessity” standards.

In public I wouldn’t want to risk it. I know my tolerances and my weight and for fun I’ve done breathalyzers on the past so I know that if I have one beer or mixed drink per hour I’ll never get close to the legal limit.

That being said I drink only on very rare occasions and only in very friendly company and I’ll limit myself to a drink every couple of hours to be sure I’m never impaired.

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@WildRose. Well Charlie I have buried a couple thousand people as my career as a Funeral Director/Embalmer embalmed more bodies than I could ever remember. Picked up bodies from everywhere, every circumstance imaginable horrible circumstances or not and I can say I didn’t always have sympathy for the recently departed but I always had sympathy for the family/families and friends. When I heard someone say “they are in a much better place” I always thought to myself Yeah, B.S. I will not decode that because I don’t think that word is allowed out of respect for our forum. After a time at different cemeteries I walked over an occasional grave and remembered them and the family because I remember names well. But to me I always choose breathing and life. Always choose life my gun buddy.

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