Lets have a beer

[Silver131]

I was searching and came across this thread (which was a good read) discussing drinking while CCW: link

Now everyone was talking about right or wrong, legal or illegal, about having a beer while CCW - I really don't want to discuss that in this thread.

Mass law states in Section 10H:

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.

I would like to discuss the 'under his control in a vehicle'. If I go to the range for example, and later decide to stop by a restaurant, have some lunch and a beer, do you think this is okay (legally and subjectively) if I have my gun(s) locked up correctly in the trunk of my vehicle. The gun is not in my direct control (which is why it's locked up) but it is in my vehicle.

I really like this community, and like that I can ask questions. I remember my NRA Instructor said simply "if a cop smells alcohol on your breath, and you have firearms, it's not going to be fun". I tend to agree with this statement as I like to be 'safe rather than sorry' but would love your thoughts.

Cheers

 

[TWtommers]

IANAL but I'll take a stab. Assuming you are, without question, inebriated I think you're still in trouble.

The law speaks to "under his control" not "direct control". Now, I may be wrong but I thought there was some case law (someone like LenS or Terraformer who know WAY more about this stuff than I might know) that spoke to the opportunity for access being an issue. For instance, you still know the combo on the lock or have the key. That means you still have control. I'm extrapolating here since I think the case law had to do with an unlicensed person having access to safe keys.

 

[Silver131]

....The law speaks to "under his control" not "direct control"....

Yeah, this is what I noticed in the writing of the law as well (god for bid we have a law that is clear). If they had said 'direct control' I think it would be clear, but control in general....jeez MA sucks

 

[terraformer]

a loaded firearm

I suspect this is an important qualifier in the law... It would seem as though unloaded and stored firearms in the trunk would not qualify as loaded and on your person (but possibly in direct control in a vehicle would apply to arms in the trunk, but then the loaded part should be an important qualifier). But that is a rational person's non lawyerly view on the statute. Not the irrational corrupt or crony magistrate who got their job because they are buds with a politician who will send your case to trial or the trial judge who thinks the cops in her courtroom should not even have an empty holster when in her/his presence.

That said, you would be served best by not stopping for lunch. It isn't worth it. Really. Until we can change the culture around here and open up liability on magistrates/ADAs/PDs/etc who take un-winable cases and who ignore the fact that the defendants they just created are in fact innocent of committing any crime other than the one they wished the legislature had made but didn't, it is just not worth it.

I am not saying that that you should repeat and perpetuate lies about what is or is not legal, only that the personal cost to you is too high and this is one where they would go after you with a vengeance hoping that the jury ignores the whole "loaded" thing. This also risks creating a definition of loaded which means ammo within a 100 mile radius is enough to be loaded. We have bigger problems to deal with.

If that's not enough to get you to not stop for lunch, don't do it because I hate taking calls from people who are being charged with not breaking laws. And yes, this is happening more than you think. We can't raise money for everyone and solve every problem. The less imaginary (as in bogus criminal charges) problems we get coming in through the door, the more real actionable problems we can address so that when the imaginary ones come through, we have the tools to make the PD hurt financially for prosecuting. Believe me, we plan on taking some of these bogus prosecutions we have available to us now into federal court, providing the people under charge don't plead out or get cold feet, which you would be amazed how many do.

 

[M1911]

is there a definition of "Loaded", is condition 3 considered "Loaded"?

There is no definition of that term in MGL Chapter 140 S121. I strongly suspect MA courts would consider condition 3 to be loaded.

 

[terraformer]

There is no definition of that term in MGL Chapter 140 S121. I strongly suspect MA courts would consider condition 3 to be loaded.

Is that mag inserted with an empty chamber? If so, they yeah there is no way to argue that is not loaded. A sane approach would look to CA where mag in pocket is unloaded.

 

[M1911]

Is that mag inserted with an empty chamber?

Yes.

Condition 0: chamber loaded, hammer cocked, safety off, full mag in mag well
Condition 1: chamber loaded, hammer cocked, safety on, full mag in mag well
Condition 2: chamber loaded, hammer down, full mag in mag well
Condition 3: chamber empty, full mag in mag well

And I agree with you. I don't see any way someone could successfully argue that condition 3 is unloaded.

 

[TWtommers]

There is no definition of that term in MGL Chapter 140 S121. I strongly suspect MA courts would consider condition 3 to be loaded.

I would think that in this state, anything beyond condition 4 would be considered loaded at a minimum. At least when it comes to what you could be hassled/arrested for.