Alcohol, a curious hypothetical situation...

bender73

bender73

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Ok, i just thought of this while reading through another thread. Many Americans get home from a long day and like to kick back and have a beer or 2. Or, maybe a couple of glasses of wine instead.

What if someone has a couple of relaxing beverages at like 9pm and suddenly they need to wake for their pistol to defend themselves at like 1-2am. He/She may be 100% justified, but we all know this is MA. I would have to wonder if the NON-DEFINED level of "under the influence" is just more Lawyer food for the State of MA. Obviously, this case puts a person at home and with a BAC like .001% (close to a good rinsing of Listerene), clearly not what reasonalbe people (including Police) would likely consider under the influence and also at a legal level to drive if he/she had to.

So, this hypothetical situation puts a person in a situation of being "under the influence," but safe and legal to drive. However, are they "Legal" to handle a firearm? Would they face criminal charges after defending themselves in a justified manner? I wonder. Thoughts? Am I missing something in the laws? I have not seen this discussed so I apologize if this has been talked about before. I thought it was a good case for open discussion.
 
I doubt a breathalizer would be used at this point unless you still smelled like alcohol...A few beers or a glass or two of wine should not matter at 1 or 2 AM. The problem is if they decide to charge you with some sort of firearm crime, or manslaughter, or even murder and plan on taking your blood. At which point you may run into trouble in your criminal trial.
 
How would the police know you were drinking? Unless you were completely shitfaced, they would probably not know unless you told them. Even if they smelled it and asked you if you had been drinking, you should not be answering questions anyway. If you ever shoot someone in self defense, you should simply say "I am the homeowner / renter (whatever) and This person illegally entered my home and I was in fear for my life. With all due respect, I have nothing else to say until I speak with a lawyer." If they ask you any other questions pertaining to the shooting, stick to your guns and say you would be happy to answer all of their questions after consulting with an attorney. Leave it at that.
 
I'm pretty sure the law in question specifically covers "Carrying" under the influence, and that has a very specific definition in MA. Having to use it for SD in your home would not fall under that statute. I'm not suggesting that there's not a potential pitfall there, but it may not be what you think.

Case in point: someone who is intoxicated and carrying a gun unlawfully (i.e. without an unrestricted LTC-A) can't specifically be charged with "Carrying under the influence".

I'm sure LenS or someone else far more knowledgeable than myself will be along at some point to correct me......
 
If youre sober enough to get out of bed, rush to the gun safe, put in the correct code and retrieve your firearm, load it and shoot the bad guy, you should be within the law [wink]
 
TBalls said:
I'm pretty sure the law in question specifically covers "Carrying" under the influence, and that has a very specific definition in MA. Having to use it for SD in your home would not fall under that statute. I'm not suggesting that there's not a potential pitfall there, but it may not be what you think.

Case in point: someone who is intoxicated and carrying a gun unlawfully (i.e. without an unrestricted LTC-A) can't specifically be charged with "Carrying under the influence".

I'm sure LenS or someone else far more knowledgeable than myself will be along at some point to correct me......
Click to expand...

This is interesting as the "explanation" expands on what the law says in black & white!


C. 269 § 10H Carrying a Firearm While Under the Influence​
[FONT=LKAOBC+TimesNewRoman][FONT=LKAOBC+TimesNewRoman]Whoever, having in effect a license to carry firearms issued under section 131 or 131F of chapter 140, carries on his person, or has under his control in a vehicle, a loaded firearm, as defined in section 121 of said chapter 140, while under the influence of intoxicating liquor or marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section 1 of chapter 94C, or the vapors of glue shall be punished by a fine of not more than $5,000 or by imprisonment in the house of correction for not more than two and one-half years, or by both such fine and imprisonment.
[/FONT][/FONT]
Click to expand...

Explanation (by Ron Glidden):

Vehicle not required:​
[FONT=LKAOMG+Arial][FONT=LKAOMG+Arial]Although this section can apply to carrying a loaded firearm while under the influence while operating a MV, such operation or even a vehicle is not required. This charge can be made against anyone under the influence who has a loaded firearm under his control whether or not he is in a vehicle. [/FONT][/FONT]​
Click to expand...

So, I'm guessing that DAs are prosecuting people in this situation (in their home)!

Truth be told in MA you are most likely going to be prosecuted for manslaughter or attempted manslaughter anyway and they will throw the kitchen sink at you, so the scenario this thread is built on becomes very small potatoes . . . and if the person follows the sage advice above by NOT TALKING, it is even less likely to be an issue within the bigger issue of a self-defense shooting.
 
Last edited:
TBalls said:
I'm pretty sure the law in question specifically covers "Carrying" under the influence, and that has a very specific definition in MA. Having to use it for SD in your home would not fall under that statute. I'm not suggesting that there's not a potential pitfall there, but it may not be what you think.

Case in point: someone who is intoxicated and carrying a gun unlawfully (i.e. without an unrestricted LTC-A) can't specifically be charged with "Carrying under the influence".

I'm sure LenS or someone else far more knowledgeable than myself will be along at some point to correct me......
Click to expand...

Yup. But even LenS said, they can still prosecute you for any substance! It's insane. Like I'll stop a potential crime in my home because I've had a drink or two (or 3). [laugh]

Bitch please. The criminal is catching the bullet. End of story.
 
prob a noob question, but when they say "under the influence" does that mean any level, such as 1 or 2 drinks, or above the legal limit? from what i was told is that as long as you are under the legal limit you are ok, but i'm no lawyer
 
If it was a legitimate home invasion and would otherwise be a clean shoot... would it matter if you were absolutely shitfaced? You're not ccw out in town so why wouldn't you be legally safe to defend yourself in your home all goofy?
 
chunky__monky said:
prob a noob question, but when they say "under the influence" does that mean any level, such as 1 or 2 drinks, or above the legal limit? from what i was told is that as long as you are under the legal limit you are ok, but i'm no lawyer
Click to expand...

There is no clearly defined threshold. Like a lot of things in MA law, it is quite subjective. "Under the legal limit (for OUI) and you're OK" is not a good approach to this one.
 
Wasn't the Constitution and Bill of Rights written in a pub (Green Dragon)?

Didn't most people in the times of the Minutemen drink primarily beer?

Just sayin'.
 
chunky__monky said:
prob a noob question, but when they say "under the influence" does that mean any level, such as 1 or 2 drinks, or above the legal limit? from what i was told is that as long as you are under the legal limit you are ok, but i'm no lawyer
Click to expand...

For MV infractions, "Under the Influence" is DEFINED as 0.08% . . . but in the definitions that apply to gun law (C. 140 S. 121), there is NO SUCH DEFINITION! It is open-ended and any attorney/DA can argue for any number they want. There is a portion of the shooting community that believes that if you took a teaspoon of Robitussin (contains alcohol) that you could face "Under the Influence" charges wrt firearms. Personally I am not that paranoid, but nobody can hang their hat on any "safe" number higher than 0.00000%!

The DA/media/LO are likely to make you walk thru hell on a hotbed of coals even if it is a legit home invasion. The fact you had a beer/wine or two with dinner an hour/2/4 hours earlier is going to be a very minor issue compared to the bigger issue of blood and a body on the floor.
 
Coyote33 said:
Wasn't the Constitution and Bill of Rights written in a pub (Green Dragon)?

Didn't most people in the times of the Minutemen drink primarily beer?

Just sayin'.
Click to expand...

The early colonists used what they had at hand -- out here in New England, they made a whiskey out of apple mash called "applejack", and In the early 1790s, angry farmers in western Pennsylvinia launched a series of attacks on federal excise agents in response to tax on whiskey , this was the "Whisky Rebellion" -- so yeah, they had other stuff to drink besides beer and ale. [cheers]
 
Maybe different by state but isn't it protocol for law enforcement to drug/alcohol test someone that kills another (legally or not) during the booking or investigation process? I'm pretty sure George Zimmerman was tested.
 
But again, like someone said, what if that person had a shot of whiskey or 2 to calm the nerves after realizing the gravity of what just happened? the timing of ingestion would remain in question despite the BAC level.
 
It's been awhile since we had another meaningless thread about how to define intoxicated under MGL wrt gun regulations...

I was getting worried there for a minute, it has actually been months since this was dredged up. [laugh]

-Mike
 
Speaking as a "professional" (see the last line in my sig)...most people detox at the rate of ~1 drink/hour. If it's 2 in the AM, and you haven't had anything since 10, ~4 drink have left your system.

I"d say that being asleep and going to "WTF?" mode wold give you more impairment.

Unless you were on a ....bender!

[laugh]
 
M1911 said:
The empty beer bottles on the kitchen counter that they find while processing the scene will probably be a pretty good hint.
Click to expand...

Unless they still had some cold, fizzy beer in the bottom, I wouldn't worry about that. You do finish your beer, right? There are sober kids in africa you know.
 
Of course, one could offer the criminal breaking in a drink and you could share a laugh about how he has legal rights despite being in your home. Then you could joke about how you have to do everything possible to either leave, or de-escalate the situation while he walks out with your life savings, takes the key to your new BMW, and then goes on to do the same thing to some other helpless fool with his unregistered, illegal gun the next night. "Massachusetts--enabling criminals since 19**!"
 

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