"Under the influence"

[kalash]

Drinking and carrying - strictly from a legal perspective. Yes, I realize that this has been covered before but I decided to do my own research into MGL (is there a good way to search MA cases?).

For driving, the law is pretty clear - 0.08% is the legal limit. Furthermore, if you test 0.05% or less, then you definitely aren't under the influence and the LEO must let you go. What's strange is the distinction between alcohol OR intoxicating liquor, and I'll explain why later.

Chapter 90, Section 24

Section 24. (1) (a) (1) Whoever […] operates a motor vehicle with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater, or while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by…

…

(e) In any prosecution for a violation of paragraph (a), evidence of the percentage, by weight, of alcohol in the defendant's blood at the time of the alleged offense, as shown by chemical test or analysis of his blood or as indicated by a chemical test or analysis of his breath, shall be admissible and deemed relevant to the determination of the question of whether such defendant was at such time under the influence of intoxicating liquor…
…
Evidence that the defendant failed or refused to consent to such test or analysis shall not be admissible against him in a civil or criminal proceeding, but shall be admissible in any action by the registrar under paragraph (f) or in any proceedings provided for in section twenty-four N. If such evidence is that such percentage was five one-hundredths or less, there shall be a permissible inference that such defendant was not under the influence of intoxicating liquor, and he shall be released from custody forthwith…

Chapter 90B, Section 8 – same as above but for vessels

Chapter 90B, Section 26A - Snow or recreational vehicle: also 0.08%




Back to alcohol vs intoxicating liquor: only the latter is mentioned in the law when it comes to firearms - the word alcohol is nowhere to be found. Does this distinction between the two mean anything?

And, of course, no limit is specified and "under the influence" isn't defined. Since these chapters appear after the ones that address driving, can it be argued in court that the later chapters imply the same limit as the previous chapters, unless noted otherwise (which it isn't)?

Chapter 269, Section 10H - Carrying loaded firearm while under influence of liquor, marijuana, narcotic drugs, depressants or stimulant substances; punishment

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.

Chapter 131, Section 62 - Weapons; intoxicating liquor or drugs

Section 62. A person, while under the influence of intoxicating liquor or of drugs shall not hunt or carry a firearm, bow and arrow or other weapon while engaged in hunting or target shooting.

What about the 0.05% figure from above? Can it be argued that if you're carrying and blow 0.05% or less then you're definitely not "under the influence"?

 

[Rob Boudrie]

There is no standard, nor is the implied consent for a BAC test.

 

[knoxy]

Sounds like beer is OK while carrying.

 

[cb1]

I see no basis for distinguishing between alcohol and intoxicating liquor.

Under the influence in the OUI context requires the state to show an individual's ability to drive has been diminished. I would expect a court to apply this same principle to the carrying of firearms. The problem is that without similar 0.05/0.08 BAC standards in the statute, a court could find an individual's ability to handle/carry firearms safely to be diminished by a much lower BAC level. After all, guns are super scary and dangerous.

 

[Tater]

as i see it, it is up to officer to make a determination as to your level of intoxication. If not driving there is also no reason for you to do any field sobriety tests or breath tests to aide in your prosecution.

 

[TLB]

as i see it, it is up to officer to make a determination as to your level of intoxication. If not driving there is also no reason for you to do any field sobriety tests or breath tests to aide in your prosecution.

Pretty sure attorneys recommend not doing those tests even if driving....but I could be wrong.

 

[In God We Trust]

Pretty sure attorneys recommend not doing those tests even if driving....but I could be wrong.

Never take the tests unless you KNOW you are good to go. Most DUI stops are the result of a late night fishing expedition. Plate light out, not using a turn signal, etc.

If there is no proof of intoxication through your driving or any tests, you will get off pretty much 100% of the time.

It's still a stupid thing to do and I advise against it.

 

[JAD]

For driving, the law is pretty clear - 0.08% is the legal limit. Furthermore, if you test 0.05% or less, then you definitely aren't under the influence and the LEO must let you go. What's strange is the distinction between alcohol OR intoxicating liquor, and I'll explain why later.

C.90 S. 24 is not as clear as you're reading it to be. That's because .08 is a per-se threshold. In addition to the per-se threshold, the statute also includes a provision that allows a subjective interpretation to be made, even with respect to alcohol.

or while under the influence of intoxicating liquor

The concept of under the influence is not codified, however is described in the criminal jury instructions (and is also reflected in cases) as being when

A person is under the influence ofalcohol if he (she) has consumed enough alcohol to reduce his (her) abilityto operate a motor vehicle safely, by decreasing his (her) alertness,judgment and ability to respond promptly. It means that a person hasconsumed enough alcohol to reduce his (her) mental clarity, self-controland reflexes, and thereby left him (her) with a reduced ability to drivesafely.

Additionally, a BAC of .05 (or less) is NOT an automatic basis for a not guilty verdict. An individual charged with Operating while Under the Influence (based on alcohol consumption) can still be convicted if the Commonwealth can prove, "beyond a reasonable doubt that the defendant was under the influence of intoxicating liquor."

 

[Gator9329]

What fun are guns without beer?
Is there such a thing as a designated carrier?

 

[kalash]

What fun are guns without beer?
Is there such a thing as a designated carrier?

Next NES meet you can carry a dozen of our guns.

 

[Rob Boudrie]

Pretty sure attorneys recommend not doing those tests even if driving....but I could be wrong.

An interesting thing about the MA model jury instructions for OUI is that the jury is to draw no inference from the lack of a BAC test. Furthermore, the prosecution is prohibited from making any reference at trial as to the reason for no BAC test - thus leaving a panel of 6 jurors thinking "there but for the grace of god go I, accused of OUI and the PD didn't even give me a BAC test to show I am sober".

The downside is the administrative license suspension (I think it's 180 days for the first refusal)

 

[MisterHappy]

Part of the problem is that the laws were written a long time ago. And, words no longer have the same meaning.

Keeping a disorderly house used to be a euphemism for a brothel; now, it's used to jack up home owners that have an out-of-contol party (or, their kids do it, while mom and dad are away).

That's why seamens' weapons (slung shot, and dirk) are specifically called out in the MGLs, though few can accurately define them, now.

I'm guessing that when the laws you reference were originally crafted, "Alcohol" was something that you would get an the apothecary, to make a tincture, and "Intoxicating liquor" was what you got a the tavern.

 

[Laderbuilt]

While I think being intoxicated i.e. Drunk and carrying is not the wisest of ideas. I can be drunk and do the following.
Speak freely, practice religion, write an editorial, VOTE, have a right to a fair and speedy trial. I think by now you all see were this is heading. So...
Why should the second amendment be any different. Personally I'm not a big drinker but I will have a beer with dinner while out and carrying. If it's a social gathering I might have a few while there but I keep myself in check.
We all preach personal responsibility and this ones no different.


Sent from my iPhone using Tapatalk

 

[GPP]

I see no basis for distinguishing between alcohol and intoxicating liquor.

Under the influence in the OUI context requires the state to show an individual's ability to drive has been diminished. I would expect a court to apply this same principle to the carrying of firearms. The problem is that without similar 0.05/0.08 BAC standards in the statute, a court could find an individual's ability to handle/carry firearms safely to be diminished by a much lower BAC level. After all, guns are super scary and dangerous.

You gotta remember, its not the impaired ability to "drive", its the impaired ability to "operate" a motor vehicle. Sounds like a stupid thing I know, but what can constitute "operation" of a MV involves no driving.

 

[kalash]

Personally I'm not a big drinker but I will have a beer with dinner while out and carrying. If it's a social gathering I might have a few while there but I keep myself in check.

That's basically what prompted my search. I've probably had close to a thousand different beers by now and I like to keep that number growing so I always try to get something new whenever I'm out to dinner. And yet I also carry 24/7, hence this predicament - I'm curious where I fall on the legal spectrum.

You gotta remember, its not the impaired ability to "drive", its the impaired ability to "operate" a motor vehicle. Sounds like a stupid thing I know, but what can constitute "operation" of a MV involves no driving.

Yeah, which is why you can get an OUI for sleeping in your own car - not driving!

 

[Rob Boudrie]

That's why seamens' weapons (slung shot, and dirk) are specifically called out in the MGLs, though few can accurately define them, now.

Could anyone ever define a zoobow?

 

[cb1]

Yeah, which is why you can get an OUI for sleeping in your own car - not driving!

I don't think that's entirely accurate. If you were sleeping in your car on your own property, with no evidence you drove the car while drunk, then you could not be convicted of OUI (for example, sleeping one off in the car after a drunken argument with the wife). If you were found sleeping in your car, with the engine running, or the keys in the ignition and the car in gear, and beer cans in the passenger seat then there could be an inference you drove the car home on a public way while intoxicated. That would be grounds for an OUI.

 

[cb1]

You gotta remember, its not the impaired ability to "drive", its the impaired ability to "operate" a motor vehicle. Sounds like a stupid thing I know, but what can constitute "operation" of a MV involves no driving.

You're right. I was perhaps simplifying things a bit. To "operate" a MV is to simply start the engine or put it in gear. I would also think "operating" could include using something like a bucket lift attached to a truck while it's on a public way. But I'm not an OUI lawyer so that's just speculation on my part.

 

[M1911]

What will be interesting is how the "keys in the ignition " precedent applies to new cars with keyless go. If someone is sleeping it off in the backseat with the keys in their pocket, that is effectively the same as an older car with the keys in the ignition.

And the whole keys in the ignition thing is just so much legal baloney, but that is a whole other rant...

 

[kalash]

I've heard many stories of people getting arrested for OUI for sleeping in the car with the keys in their pockets. I've even heard a story of someone being found sleeping IN THE BACK SEAT and still slapped with OUI.

This stuff annoys the hell out of me. Last year I was visiting a friend in NY and we all went out to the bars. I called it a night first and went back to his place thinking that his girlfriend would let me in. Well, she was sleeping, there's no door bell, and I didn't have her number so it was either laying down on the front steps in the cold like a hobo or go sit in my car and snooze and risk an OUI. Great f-ing choices.

 

[bigblue]

I've slept it off in the parking lot of the bar rather than drive home, are you telling me that I can get cuffed and stuffed for doing the responsible thing? Maybe I will be more careful and won't put my fotay on the dash next time.

 

[kalash]

I've slept it off in the parking lot of the bar rather than drive home, are you telling me that I can get cuffed and stuffed for doing the responsible thing? Maybe I will be more careful and won't put my fotay on the dash next time.

Are you serious? Have you really done that? That's massively irresponsible... I can't believe someone would actually do that.... What could possibly compel you to buy a fotay??

 

[snax]

Sleeping in car- my friend was caught sleeping in his car on the side of the highway. The trooper put him in the cruiser, drove him home and left him with a written note at what mile marker the car was at so he could pick it up next day. Told him if he ever pulled him over for anything he would throw the book at him.
My friend never drove drunk again.

 

[DrBurnsides]

I've slept it off in the parking lot of the bar rather than drive home, are you telling me that I can get cuffed and stuffed for doing the responsible thing? Maybe I will be more careful and won't put my fotay on the dash next time.

If you fall asleep in a locked trunk is that ok?
Technically satisfies storage requirements.

 

[Len-2A Training]

I've heard many stories of people getting arrested for OUI for sleeping in the car with the keys in their pockets. I've even heard a story of someone being found sleeping IN THE BACK SEAT and still slapped with OUI.

This stuff annoys the hell out of me. Last year I was visiting a friend in NY and we all went out to the bars. I called it a night first and went back to his place thinking that his girlfriend would let me in. Well, she was sleeping, there's no door bell, and I didn't have her number so it was either laying down on the front steps in the cold like a hobo or go sit in my car and snooze and risk an OUI. Great f-ing choices.

I've heard similar stories.

Your NY bar story could have been me many years ago. NU Co-Op at MIT/IL, secretary was leaving the job and another guy was buying rounds. I remember drinking 7 hard liquor drinks (MIT Faculty Club - non-profit so they really poured the booze, and absolutely NOTHING for food after work) before I left. I was in no condition to drive, so I went to WTBS (MIT radio station, I was on staff) and slept it off. Had I not been affiliated with the radio station, my only other option would have been to get into the back seat of the car and sleep it off instead. It was parked in the MIT parking lot, and likely back then MIT Police wouldn't have made a big deal of it (see my comment below), but still . . .

Sleeping in car- my friend was caught sleeping in his car on the side of the highway. The trooper put him in the cruiser, drove him home and left him with a written note at what mile marker the car was at so he could pick it up next day. Told him if he ever pulled him over for anything he would throw the book at him.
My friend never drove drunk again.

This was how we handled it when I worked for the PD. We didn't arrest people for sleeping it off in cars. But that was then, and now you definitely would get jacked up by my PD.

 

[DW357]

If you fall asleep in a locked trunk is that ok?
Technically satisfies storage requirements.

http://www.fox25boston.com/news/pol...-made-up-beverly-kidnapping-story-1/140417554

 

[Len-2A Training]

http://www.fox25boston.com/news/pol...-made-up-beverly-kidnapping-story-1/140417554

Well, they didn't arrest her for OUI!

 

[DW357]

Well, they didn't arrest her for OUI!

Right. So when in doubt, lock yourself in the trunk and tell police you were kidnapped

 

[MisterHappy]

Could anyone ever define a zoobow?

When you get a zoo for a present, it's what's on top.

 

[GPP]

I've heard many stories of people getting arrested for OUI for sleeping in the car with the keys in their pockets. I've even heard a story of someone being found sleeping IN THE BACK SEAT and still slapped with OUI.

This stuff annoys the hell out of me. Last year I was visiting a friend in NY and we all went out to the bars. I called it a night first and went back to his place thinking that his girlfriend would let me in. Well, she was sleeping, there's no door bell, and I didn't have her number so it was either laying down on the front steps in the cold like a hobo or go sit in my car and snooze and risk an OUI. Great f-ing choices.

Yup, I agree, complete and utter horseshit. In my 28 years Ive never arrested someone for sleeping one off in the car, keys in the ignition or not.
Unfortunately, there are plenty of guys who will toss you in the cooler for it.