Friend is losing his LTC

He could have truthfully said, "No, I don't have a firearm on me." and no more. If there was no arrest, even if the car was towed, it is unlikely that there would have been an inventory search. Of course, no offense to Zappa, some unscrupulous tow company employees might have done their own "unofficial" search and the gun might have disappeared. In which case he has a different problem.

I've had a number of vehicles towed post accident and there has never been an inventory search of any of them.

Skylineracer329 said:
Ok so he called me and I have the full story. It's full of all sorts if poor life choices.

He crashes his car. No roll over, Nothing fell out of his trunk.

Responding trooper ran him in the system, dispatch advised the trooper of my friends LTC. Trooper asks if he has any firearms on him, my friend says he has one in the trunk.

My friend went to the hospital. Trooper met him there. Trooper asked if he wants to take "an unofficial breathalyzer test". My friend says yes and blows a 0.05.

Seems to me like he should have refused any searches an denied the breathalyzer.
Click to expand...
 
In Mass, "under the influence" "below 0.08" is discretionary, meaning he doesn't need law to say whether or not you're affected, because there's no ruling on what "under the influence" is. 0.01 could be considered "under the influence", and thus now you're screwed in more ways than one.

What a lovely state, eh? [rolleyes]


Jason Flare said:
The cops are not asking you questions to determine that you are more innocent than you are at that moment.
Click to expand...
The entire purpose of cops is two-fold.
1. Revenue generation
2. Provide the DA with cases, so as to validate the DA's job....which then validates the need for judges. Which is why judges don't convict cops when cops do bad things that would normally put a civilian in jail for decades at a time.

But I digress...
 
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UPDATE:

The "unofficial breathalyzer" was not counted and won't be admitted as evidence. He was taken to the police station after being discharged from the hospital and offered a breathalyzer test that will be admitted as evidence, which he refused. So now he's fighting a DUI charge as well.
 
So in context of this issue, lets say the cop asks if he has any weapons in the vehicle. The answers here say don't lie but don't answer. So the guy says "officer, I am declining to answer that question" or "I'll take the 5th and remain silent". Doesn't the cop just claim probably cause and search the vehicle anyway? Is the idea that once you go to court it can be argued that it was an illegal search and not admissible? So, the bright side is no conviction or federally PP but the CLEO pulls his LTC on suitability. Is this a best case given the above?
 
bill o said:
Doesn't this fall under transportation, as opposed to storage?
Click to expand...

I think it would depend on the circumstances. It's one of the more confusing aspects of MA firearms law. Which is why the guy needs a really good lawyer. Even if he's acquitted, I doubt he's going to be able to retain his LTC and his guns. There's always suitability for the licensing authority to fall back on.
 
Skylineracer329 said:
UPDATE:

The "unofficial breathalyzer" was not counted and won't be admitted as evidence. He was taken to the police station after being discharged from the hospital and offered a breathalyzer test that will be admitted as evidence, which he refused. So now he's fighting a DUI charge as well.
Click to expand...

Did your buddy cause the accident? Or did he get hit?
 
bdb said:
So in context of this issue, lets say the cop asks if he has any weapons in the vehicle. The answers here say don't lie but don't answer. So the guy says "officer, I am declining to answer that question" or "I'll take the 5th and remain silent". Doesn't the cop just claim probably cause and search the vehicle anyway? Is the idea that once you go to court it can be argued that it was an illegal search and not admissible? So, the bright side is no conviction or federally PP but the CLEO pulls his LTC on suitability. Is this a best case given the above?
Click to expand...

The best answer is "I do not conscent to any searches". Ideally it's not an admission of guilt. And any subsequent searches are illegal and inadmissable.
 
bdb said:
So in context of this issue, lets say the cop asks if he has any weapons in the vehicle. The answers here say don't lie but don't answer. So the guy says "officer, I am declining to answer that question" or "I'll take the 5th and remain silent". Doesn't the cop just claim probably cause and search the vehicle anyway? Is the idea that once you go to court it can be argued that it was an illegal search and not admissible? So, the bright side is no conviction or federally PP but the CLEO pulls his LTC on suitability. Is this a best case given the above?
Click to expand...


From the outset you have to say to the cop, "I appreciate that you're doing your job here but I don't talk to the police." Probable cause come into play when you answer some questions and not all questions.

On the inventory, I think the cops only inventory the contents of the car when you're arrested for something.

Don't talk to the cop, let him give you a field sobriety test and go from there.
 
Garys said:
This. It is entirely up to the police and DA as to what constitutes intoxicated carrying. The recently enacted law had a section which would have codified the ETOH level, but it also would have made it a felony (I think). In any case a conviction would have made the person a Prohibited Person under federal law.
Click to expand...

Well.... It's actually up to a jury really, but as for getting charged that's correct. (And in practice that's almost as bad as a conviction.) I would think that a good lawyer would be able to argue that the standard for "under the influence" is the that's one already defined in the law. Then again this is MA where the jury pool as a whole is not exactly gun friendly.

Garys said:
It's been said a million times, locking a gun in a trunk in this state is not proper storage.
Click to expand...

It has been said a million times, but as far as I know the courts are still undecided on that particular point. (See Comm vs. Reyes.) The whole "when does transport stop being transport and start becoming storage (and vice versa)" thing is also up in the air.

bill o said:
Doesn't this fall under transportation, as opposed to storage?
Click to expand...

Look at Comm vs. Reyes - they weren't sure so the just charged him with both. (And if I recall he was at least initially convicted of both.) Honestly that's small potatoes compared to the carrying under the influence charge. Improper transportation in and of itself is "just" a relatively small fine ($500 bucks.) The carrying under the influence charge could bring jail time.
 
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Let me see if I get this correct here guys:

1) If you have a firearm anywhere on your person or in your car, decline to drink, even a single drink, maybe even avoid Listerine.
2) Unless the firearm is on your hip and you have a valid, unrestricted LTC, it should be in a locked container, unloaded, locked in the truck, and even a cable lock through the chamber if you want to be doublegood sure Big Brother can't bust your balls.

If you are in an accident and/or otherwise pulled over by a police officer
3) even if you've followed #1 & #2 simply answer "sir, I'm declining to answer any questions?"

I only ask because, in all reality, if I'm not breaking any laws, doesn't refusing to answer immediately put the cop into "he's hiding something" mode? I understand the "don't talk to police" mantra, very much so. But I've only ever had positive interactions with police in my life personally, and would really like to keep it that way.
 
Honestly, the officer probably saw the wreck, smelled booze and just locked your friend up assuming he was drunk.

Had your friend refused the breath test, I wonder if they would have charged impaired possession?


Sent from my iPhone using Tapatalkj
 
jasons said:
It has been said a million times, but as far as I know the courts are still undecided on that particular point. (See Comm vs. Reyes.)
Click to expand...

Right, the court was discussing when it said the following, but it would probably be the same for the trunk: "This does not resolve whether a locked glove compartment might be adequate under the storage statute. We are of the view that it might depending on the particular factual circumstances including the nature of the locking mechanism, whether the motor vehicle was also locked and alarmed, and ultimately whether in the circumstances it was adequate to "deter all but the most persistent from gaining access." This is a question of fact, properly decided by the fact finder at trial."

jasons said:
The whole "when does transport stop being transport and start becoming storage (and vice versa)" thing is also up in the air.
Click to expand...

The court said, in Reyes, that the carrying statute (131C) does not apply "once the defendant leaves his vehicle and leaves the firearm in it." But it's unclear what happens if someone is in the car, or if the car is running or moving. Some pieces to the puzzle that only help a little:

- "One who exercises control over a firearm which is in a moving vehicle is ... responsible for the movement of the firearm..." Comm v. Diaz (1983)

- "Carrying a firearm" occurs when one "...knowingly has more than momentary possession of a working firearm and moves it from one place to another." Comm. v. Seay (1978)

This might be enough to hang a 131C(a) charge on.
 
Beansie said:
Let me see if I get this correct here guys:

1) If you have a firearm anywhere on your person or in your car, decline to drink, even a single drink, maybe even avoid Listerine.
2) Unless the firearm is on your hip and you have a valid, unrestricted LTC, it should be in a locked container, unloaded, locked in the truck, and even a cable lock through the chamber if you want to be doublegood sure Big Brother can't bust your balls.

If you are in an accident and/or otherwise pulled over by a police officer
3) even if you've followed #1 & #2 simply answer "sir, I'm declining to answer any questions?"

I only ask because, in all reality, if I'm not breaking any laws, doesn't refusing to answer immediately put the cop into "he's hiding something" mode? I understand the "don't talk to police" mantra, very much so. But I've only ever had positive interactions with police in my life personally, and would really like to keep it that way.
Click to expand...

DON'T. TALK. TO. THE. POLICE.
 
MaynardDad said:
Right, the court was discussing when it said the following, but it would probably be the same for the trunk: "This does not resolve whether a locked glove compartment might be adequate under the storage statute. We are of the view that it might depending on the particular factual circumstances including the nature of the locking mechanism, whether the motor vehicle was also locked and alarmed, and ultimately whether in the circumstances it was adequate to "deter all but the most persistent from gaining access." This is a question of fact, properly decided by the fact finder at trial."



The court said, in Reyes, that the carrying statute (131C) does not apply "once the defendant leaves his vehicle and leaves the firearm in it." But it's unclear what happens if someone is in the car, or if the car is running or moving. Some pieces to the puzzle that only help a little:

- "One who exercises control over a firearm which is in a moving vehicle is ... responsible for the movement of the firearm..." Comm v. Diaz (1983)

- "Carrying a firearm" occurs when one "...knowingly has more than momentary possession of a working firearm and moves it from one place to another." Comm. v. Seay (1978)

This might be enough to hang a 131C(a) charge on.
Click to expand...

Is there a safe protocol for locking up the gun and leaving the car when you are about to enter a "gun free zone"?
Carrying with alcohol is illegal but is transporting the gun with minute amounts of alcohol in your system legal?
 
Beansie said:
Let me see if I get this correct here guys:

1) If you have a firearm anywhere on your person or in your car, decline to drink, even a single drink, maybe even avoid Listerine.
2) Unless the firearm is on your hip and you have a valid, unrestricted LTC, it should be in a locked container, unloaded, locked in the truck, and even a cable lock through the chamber if you want to be doublegood sure Big Brother can't bust your balls.

If you are in an accident and/or otherwise pulled over by a police officer
3) even if you've followed #1 & #2 simply answer "sir, I'm declining to answer any questions?"

I only ask because, in all reality, if I'm not breaking any laws, doesn't refusing to answer immediately put the cop into "he's hiding something" mode? I understand the "don't talk to police" mantra, very much so. But I've only ever had positive interactions with police in my life personally, and would really like to keep it that way.
Click to expand...

How are you so certain you are not breaking any laws? The part you seem to not understand is that massachusetts fire arms laws in particular are convaluted and vague......which gives a responding LEO almost unlimited leeway in interpetation. Define "direct control".....define "storage" ....define "secure locked container".........see what I mean. The law is not specific ......on purpose in this communist state
 
Supermoto said:
This guy should be banned from going to church too, that is as reasonable as losing your guns
Click to expand...


If he loses his LTC he can't go to church. MA has a law that requires men to bring a rifle to church on Sundays. I can't cite this but I've heard this is still on the books from back in the colonial era....
 
whacko said:
How are you so certain you are not breaking any laws? The part you seem to not understand is that massachusetts fire arms laws in particular are convaluted and vague......which gives a responding LEO almost unlimited leeway in interpetation. Define "direct control".....define "storage" ....define "secure locked container".........see what I mean. The law is not specific ......on purpose in this communist state
Click to expand...

Fair enough.

The only issue is whether or not I have a firearm really. I get stopped for speeding or whatever, been there, done that, I'm aware of how to proceed. I get asked "do you have a firearm in the vehicle" is where I start to get a little fuzzy on WTF I should do. I've heard now:
1) I decline to answer any questions
2) Yes, how would you like to proceed

Honestly the only time I have mine (red town) is to or from the range and driving home after buying them... Which makes it less likely something will happen, but I get T-Boned or something... Well there goes the neighborhood.
 
bill o said:
Last week, I blatantly blew down a clearly marked one-way street then talked the police officer out of giving me a ticket.

I agree that it is good advice in general though.
Click to expand...

This is what I'm saying, lol. I've done similar things. ie: I was reasonable, respectful and professional and the cop was the same.

(I've not had a firearm with me though.)
 
chiefsaj said:
.05 Isn't legally drunk.

Not saying his decisions were good, but technically speaking he wouldn't have been arrested had he simply gotten pulled over.
Click to expand...

Yeah, and there is no storage violation there either. A transportation violation, but not a storage violation. I really hope your buddy gets a good lawyer who has a clue.
 
xtry51 said:
DON'T. TALK. TO. THE. POLICE.
Click to expand...

A cop friend told a group of us, his friends, if you get pulled over because the cop thinks your drunk, don't do a sobriety test if asked. (I don't drink so it doesn't affect me). He said you will definitely be arrested but if you refuse the test and refuse a breath test, they will have no evidence against you. The cop might be able to say I smell alcohol on his breath or he had blood shot eyes but that is easy to kill. I had one drink several hours ago and I didn't sleep well last night.

If they ask you to do the test, you are almost certainly going to get arrested after that subjective test. Don't do it.
 
Skylineracer329 said:
UPDATE:

The "unofficial breathalyzer" was not counted and won't be admitted as evidence. He was taken to the police station after being discharged from the hospital and offered a breathalyzer test that will be admitted as evidence, which he refused. So now he's fighting a DUI charge as well.
Click to expand...

Yeah, you know what, this may be a good thing. He sounds like he has a lawyer at this point. The problem is he got into an accident. That is not going to play well. But he has plea bargain leverage now.
 

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