POSSESSION OF FIREAR UNDER THE INFLUENCE OF ALCOHOL
As can probably be imagined, it is illegal in Nevada to possess a firearm while under the influence of alcohol. Convictions for doing so are severe and include jail time and harsh fines.
What is the legal definition of possessing a firearm under the influence of alcohol?
The laws relating to possessing a firearm while under the influence of alcohol are governed by NRS 202.253, and 202.257.
NRS 202.253 – Definitions.
As used in NRS 202.253 to 202.369, inclusive:
- “Explosive of incendiary device” means any explosive or incendiary device material or substance that has been constructed, altered, packaged or arranged in such a manner that its ordinary use would cause destruction or injury to life or property.
- “Firearm” means any device designed to be used as a weapon from which a projectile may be expelled through the barrel by the force of any explosion or other form of combustion.
- “Firearm capable of being concealed upon the person” applies to and includes all firearms having a barrel less than 12 inches in length.
- “Motor vehicle” means every vehicle that is self-propelled.
NRS 202.257 – Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.
- It is unlawful for a person who:
- Has a concentration of alcohol of 0.10 or more in his or her blood or breath; or
- Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him or her incapable of safely exercising actual physical control of a firearm,
- to have in his or her actual physical possession any firearm. This prohibition does not apply to the actual physical possession of a firearm by a person who was within the person’s personal residence and had the firearm in his or her possession solely for self-defense.
- An evidentiary test to determine whether a person has violated the provisions of subsection 1 must be administered in the same manner as an evidentiary test that is administered pursuant to NRS 484C.160 to 484C.250, inclusive, except that submission to the evidentiary test is required of any person who is requested by a police officer to submit to the test. If a person to be tested fails to submit to a required test as requested by a police officer, the officer may apply for a warrant or court order directing that reasonable force be used to the extent necessary to obtain the samples of blood from the person to be tested, if the officer has reasonable cause to believe that the person to be tested was in violation of this section.
- Any person who violates the provisions of subsection 1 is guilty of a misdemeanor.
- A firearm is subject to forfeiture pursuant to NRS 179.1156 to 179.1205, inclusive, only if, during the violation of subsection 1, the firearm is brandished, aimed or otherwise handled by the person in a manner which endangered others.
- As used in this section, the phrase “concentration of alcohol of 0.10 or more in his or her blood or breath” means 0.10 gram or more of alcohol per 100 milliliters of the blood of a person or per 210 liters of his or her breath.
There seems to be a lot going on here for something so simple?
The statute itself is more intimidating than it should be considering that this is a relatively easy law to understand.
Essentially, NRS 202.257 prohibits anyone with a blood-alcohol content (BAC) of 0.10 or more to physically possess a firearm.
A “firearm” as it applies to this law is any device that is designed to be a weapon and is capable of propelling any type of projectile through the barrel using combustion. In other words, any gun.
Blood-alcohol content refers to the percentage of ethanol (alcohol) in the blood it is measured by looking at how many parts ethanol per 100 parts blood. In other words, for the purposes of NRS 202.257, someone can only violate the statute if they contain 1 part ethanol for every 1,000 parts blood. This means 1 gram of alcohol for every 100 milliliters of blood. For the average adult male weighing approximately 180-200 pounds, this blood alcohol content is generally achieved at approximately 4-5 drinks.
Please Note: EVERY PERSON IS AFFECTED BY ALCOHOL DIFFERENTLY. THE AMOUNT OF ALCOHOL THAT CAUSES A BAC OF 0.10 CAN VARY GREATLY DEPENDING ON NUMEROUS FACTORS INCLUDING METABOLISM, AGE, GENDER, RATE OF CONSUMPTION AND MANY OTHER FACTORS. THE NUMBERS PROVIDED IN THIS ARTICLE ARE PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO PROVIDE AN ACCURATE GUAGE OF HOW ALCOHOL WILL AFFECT YOU.
Okay, so what does you mean by ‘physical possession’?
“Physical possession” for purposes of this statute means that the firearm is easily accessible. It is kept vague intentionally so that prosecutors can make a case-by-case decision about whether to charge someone. Generally speaking, if you have the firearm on your person (in a holster on your belt, tucked into your pants or other clothing, in a pocket, or even in a backpack you have with you), then you can be charged under NRS 202.257.
What if I have a permit to carry a concealed weapon?
A CCW permit is not a defense to possession of a weapon under the influence.
What if the firearm is in the car with me, but is not easily accessible?
If you were driving the car, and the car is registered to you, then you can be charged for both driving under the influence and for possessing a firearm while under the influence.
If you were not driving the car, then whether you will be charged with possession of the firearm while under the influence will depend on where the gun was, whether it can be shown that it belonged to you, and whether the car was registered to you.
- If the gun was very near to you at the time it was found, on the seat, on the floorboards, under the seat you were sitting in, or under the seat next to you, then you will likely still be charged for possession of the firearm under the influence;
- If the firearm is in the trunk and the vehicle is registered to you, then it will depend on whether ownership of the firearm can be proven:
- If it can be proven that the firearm belonged to someone else in the vehicle, then you should not be charged as it was “possessed” by someone else in the vehicle;
- If ownership of the firearm cannot be proven or it is shown to belong to you, then you will be charged.
- If the firearm is in the trunk and the vehicle is not registered to you, then it will depend on who the firearm belongs to:
- If the firearm can be proven to belong to you, then you will be charged for possession of the firearm under the influence of alcohol;
- If ownership cannot be proven, or it can be proven to belong to someone other than you, then you should not be charged.
What if I’m at home? Am I not allowed to drink at home and have firearms there?
If you are at home and own firearms for the purpose of self-defense, then you should not be charged for being in possession of the firearms while under the influence.
However, it should be noted that if law enforcement finds you using the firearm for any purpose other than self-defense, and you have a BAC over 0.10, then you can still be charged for possession of the firearm even if you are in your own home.
How would the cops know if I’m under the influence?
Subsection 2 of NRS 202.257 states that if you law enforcement requests that you submit to a BAC test because they believe you are violating NRS 202.257, then you must submit to the test. If you refuse, then the officer can apply for a warrant allowing them to use reasonable force to obtain blood for such testing.
You do, however, have the choice of which type of testing is done. The most common forms of BAC testing include:
- Blood testing;
- Urine testing.
Is there anything else I should know?
Yes. If you were using, ‘brandishing,’ or handling the firearm in a threatening manner or in any manner that could have caused harm to another person, then the firearm is subject to forfeiture. This is also intentionally vague as to what it means to ‘brandish’ or handle the firearm in a manner that could endanger others. Prosecutors have the ability to decide, again on a case-by-case basis, whether they believe you were handling the firearm in a manner that could endanger others.
What are the possible penalties?
Convictions for possession of a firearm under the influence of alcohol are misdemeanors in Nevada and carry with them a possible sentence of:
- Up to 6 months in jail; and/or
- Possible fines up to $1,000.
Are there any Defenses?
Yes, of course there are. Because of the vague nature of the charges for possession of a firearm under the influence, there are numerous possible defenses. Some of the possible defenses include:
- No physical possession – Possession of a firearm under the influence of alcohol requires two elements: a BAC over 0.10, and actual physical possession of the firearm. “Physical possession” is clearly a vague term, and as such, if your attorney can show that you were in the vicinity of the firearm, but did not “physically possess” it, then the charges against you should be dropped or dismissed. Some of the most common ways of showing this are by proving that the gun was not on your person, belonged to someone else nearby, or was locked away in such a manner that you did not have easy access to it.
- Not under the influence/improper testing – Testing for BAC is notoriously difficult. Law enforcement officers are required to follow strict guidelines regarding when the testing must be done, how it must be conducted, and the specific parameters that must be followed. Consequently, if your attorney can show that the testing parameters were not followed, and that the testing was either invalid, or produced the wrong result, then the charges against you should be dropped or dismissed.
- At home – As noted above, if you are in your residence and the firearm is in your possession for purposes of self-defense, then you cannot be convicted under NRS 202.257.
- Lack of Evidence – As with any crime, the prosecution bears the burden of proving every element of the crime “beyond a reasonable doubt.” If there is not enough evidence to uphold this high level of proof, then the charges should be dropped or dismissed.
What should I do if I’ve been charged with Possession a firearm under the influence?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.