Defending Against Firearms Charges Involving Using Weapons While Intoxicated
It doesn’t sound like a good idea – using a firearm while intoxicated – but take a moment to think. A fight breaks out at a local bar or campsite. You’re walking home from dinner and see someone in distress. Someone attacks you while you’re tailgating. These situations may necessitate the use of a firearm while intoxicated. Ohio law prohibits anyone from using or carrying a weapon while under the influence of alcohol or “any drug of abuse.” This statute is simple. There are no exceptions listed, and even a single drink can render you under the influence of alcohol.
Did you have a few glasses of wine at dinner and forget the handgun concealed in your purse? You may be guilty of carrying a weapon while intoxicated in Ohio. The experienced gun crimes attorneys at the Joslyn Law Firm know the legal defenses applicable to criminal charges for using/carrying a weapon while intoxicated (Ohio Code Section 2923.15). Sometimes using a weapon prevented a greater evil. What if a woman was caught carrying a weapon after the unintentional ingestion of the date-rape drug? What if you grabbed a weapon from an intoxicated individual before he could harm anyone?
Responsible gun owners may have a defense to possessing a weapon while intoxicated. Our experienced Ohio firearms defense lawyers may be able to mitigate your charges and protect your Second Amendment rights. Discuss your firearms defense today by calling (614) 444-1900 or contacting us online for a free, confidential Ohio criminal defense consultation.
Information Center for Using Weapons While Intoxicated Charges
Ohio Code Section 2923.15, which criminalizes carrying or using a weapon while under the influence of certain drugs or alcohol, is a single-line crime. The statute simply states that “[n]o person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.” Violators are guilty of a misdemeanor in the first degree. For general information regarding this crime, consult our information center for using weapons while intoxicated charges. Defending against a Section 2923.15 charge, however, requires a defense attorney with an in-depth understanding of Ohio common law defenses as applied to the specific facts of your case. If you’ve been charged with violating Section 2923.15, contact the top-rated Columbus criminal defense attorneys at Joslyn Law Firm today.
- General Rights and Restrictions on Carrying/Using Weapons in Ohio
- The Criminal Elements of Using Weapons While Intoxicated
- Defining “Drug of Abuse”
- Direct and Collateral Penalties for Using Weapons While Intoxicated Convictions
- Common Law Defenses to Using a Weapon While Intoxicated
- Will a Conviction for Using Weapons While Intoxicated Affect My Firearms Rights?
1. General Rights and Restrictions on Carrying/Using Weapons in Ohio
Ohio is a traditional open carry state. Citizens may keep and carry most firearms, both in their homes and in public view, provided they’re not legally prohibited from doing so. Legal disabilities in Ohio – circumstances prohibiting citizens from owning, carrying, or using a weapon – include:
- Age (under 16, 18, or 21 depending)
- Violent felony convictions
- Adjudications of mental incompetence, mental defect, or mental illness subject to a court order
- Chronic alcoholism or drug dependency adjudications
These disabilities completely prohibit the ownership, purchase, handling, transportation, and recreational use of any firearm. Adjudicated chronic alcoholics and/or drug addicts are subject to a complete firearms prohibition under Section 2923.13, as is further explained in our Information Center for Having Weapons While Under Disability in Ohio.
Unlike Section 2923.13 disabilities, which must be placed and removed by a court of law, Section 2923.15 creates a temporary weapons disability that activates and expires without a court order. This is a restriction on firearms use due to circumstance – under the influence of drugs or alcohol – similar to restrictions on use based on location, i.e., in a school zone. Once the legal barrier to use/carry is removed, general firearms rights are automatically reinstated. A court order is unnecessary.
2. The Criminal Elements of Using Weapons While Intoxicated
The government has the burden of proving all criminal elements beyond a reasonable doubt. This includes any necessary mens rea – criminal intent – associated with the crime and the actus reus – the physical act – that makes the crime punishable. Some crimes, such as using weapons while intoxicated, are categorized as strict liability crimes. This means no criminal intent is needed, and the actus reus is enough for conviction. Provided the offender intended to carry the weapon and intended to consume drugs or alcohol, he is chargeable with using/carrying weapons while intoxicated.
Two simulations acts are necessary under Section 2923.15: (1) consuming influential drugs/alcohol and (2) carrying/using the weapon. The title of this statute is misleading. The law actually states it’s illegal to use or carry a weapon while “under the influence” of certain drugs or alcohol. You can technically be under the influence of alcohol without being legally intoxicated. In Ohio, “intoxication” is defined as “being under the influence of alcohol, another drug, or both alcohol and another drug and, as a result, having a significantly impaired ability to function.” Finding that someone was “under the influence” of alcohol or drugs of abuse does not require significant impairment. It only requires a finding that, under the circumstances then and there prevailing, the accused’s actions, reactions, and/or mental state were impaired. It means the accused had reduced intellectual or physical function as a result of the consumption.
This is a lower standard than intoxication and isn’t dependent on blood alcohol content. For some, one drink can render them “under the influence.” For others, it may take 3 or 4 drinks before the alcohol has any impact on their function. Whether the defendant was under the influence is a fact-specific determination made by a criminal jury. The Ohio Code defines carry and use. Carry means having a weapon on your person or ready at hand. This includes carrying a weapon in a backpack or setting it on a nearby table. The weapon must be yours to control, however. Just because someone places his weapon next to you doesn’t mean you were carrying the weapon under the Ohio Code.
Using a weapon generally means discharging, cleaning, disassembling, pointing, or handling the firearm in some way. Conscious interaction with the weapon is required, and it’s enough to simply grasp, pull, or stroke the firearm. Simply touching or moving a firearm may not amount to use in Ohio. This depends on the facts and circumstances of each case.
3. Defining “Drug of Abuse”
Ohio defines a [d]rug of abuse as a:
- controlled substance
- dangerous drug
- misused over-the-counter medication
Controlled substances are defined by federal law and include, but are not limited to, the following:
In Ohio, it is illegal to use or carry a firearm while under the influence of prescription medications if those medications impair your physical or mental state. Someone changing doses of Adderall or trying a new, controlled medication may be impaired from using or carrying a firearm while her body adjusts to a different controlled substance. Dangerous drugs include:
- Prescription-only medications including all medications with an FDA warning label
- any drug designed to be injected into the body including non-oral medications, shots, or IV infusions
- drugs containing a schedule V controlled substance, such as certain anti-seizure or diuretic medications
- any biological product drugs, i.e., insulin.
Lastly, you cannot use or carry a firearm if you’re under the influence of a misused over-the-counter medication. Taking too many allergy pills, for example, can actually affect your cognitive function. Allergy pills are over-the-counter medications that don’t require a prescription, but taking more than one in a 24-hour period may justify Section 2923.15 charges. Almost anything can qualify as a drug of abuse under the right circumstances.
4. Direct and Collateral Penalties for Using Weapons While Intoxicated Convictions
Using a weapon while intoxicated is a misdemeanor in the first degree punishable by up to 6 months in prison and/or a $1,000 fine. Judges have considerable discretion in sentencing, and punishment typically depends on the circumstances of the offense, the offender’s criminal history, and any other pending charges. Judges may also adjudicate the offender an alcoholic or drug dependent, include rehabilitation requirements, order community service, and impose probation.
Misdemeanor convictions will appear during criminal background checks. This means background checks performed to obtain your concealed handgun license, international visas, and/or jobs will reveal a criminal record. An adjudication of alcoholism or drug dependency will disable offenders from possessing a weapon, however.
5. Common Law Defenses to Using a Weapon While Intoxicated
There are always procedural and evidentiary defenses to criminal charges. For example, illegally seized evidence is excludable, and speedy trial violations void the indictment. Defendants can also raise traditional common law defenses to using a weapon while intoxicated charges. These defenses assert that otherwise criminal conduct was either justified or excusable. Justifiable conduct is encouraged, and justifiable conduct defenses include the following:
- Self-Defense – Use of the weapon while intoxicated was necessary because you were in imminent danger of serious bodily harm or death. You must believe you were in danger and actually have been in danger of immediate, serious harm.
- Defense of a Third Person – The self-defense standard is applicable if you were defending a third person, i.e., friend, family member, police officer, stranger, from imminent bodily harm or death. It is often necessary that the third person was not capable of defending themselves.
- Necessity/Lesser Harm – Taking a weapon away from a heavily intoxicated individual making threats, even if you’re also under the influence of alcohol, is an example of a necessity defense. It doesn’t rise to the level of self-defense because the harm wasn’t imminent, but your actions likely prevented a greater harm.
Excusable conduct defenses, while not necessarily encouraged, acknowledge it would be unjust to punish a defendant under the circumstances. These defenses include:
- Mistake of Fact – If you reasonably believed your actions were justified, i.e., necessary, even though they weren’t, you can claim mistake of fact. It means that if the facts as you believed them were actually true, you would have had justification to use a weapon while intoxicated. Your mistaken belief cannot be attributed to your own intoxicated state.
- Insanity – This defense is applicable if you did not understand your actions and didn’t have the capacity to understand their illegality. Intoxication is not a valid excuse, even if you didn’t understand your actions at the time.
- Involuntary Intoxication – The only time intoxication excuses criminal behavior is if it was involuntary. This means you were drugged without permission, or you had an unexpected reaction to a normally safe dose of prescription medication. This is not a valid excuse if you were drinking but drank more than anticipated due to “over pouring.”
- Duress –You were forced to do an unlawful act due to the threat of harm to yourself or a loved one. An inebriated individual might force you to hold his weapon by threatening that he’ll harm you if not. You must not have an avenue of easy escape from the situation, i.e., walking over to a security guard, and the threatened harm must be more serious than the criminal behavior.
Multiple common law defenses are available to these firearms charges. An experienced Ohio firearms defense attorney will analyze the facts of an individual case to maximize the defensive strategy.
6. Will a Conviction for Using Weapons While Intoxicated Affect My Firearms Rights?
This charge will likely not affect your rights alone. Using/carrying a weapon while intoxicated is a misdemeanor in the first degree, not a felony. Misdemeanor convictions, with a few exceptions, are not sufficient to affect your right to keep and bear arms. A finding of guilt under this section, however, may result in an adjudication of chronic alcoholism or drug dependency, triggering a Section 2923.13 weapons disability. This means you’re completely disabled from owning, using, carrying, or obtaining firearms in Ohio unless you petition for relief. Hiring an experienced Ohio firearms defense attorney is essential if responsible gun owners are concerned about maintaining their firearms rights. For example, agreeing to attend AA or enter drug rehab as part of a “using weapons while intoxicated” plea may require adjudication of chronic alcoholism or drug dependency. The nature of an indictment and/or criminal complaint is also important. Those accused of using (as opposed to carrying) a firearm while intoxicated are often charged with more than one offense. Illegally discharging weapons, assault and battery, manslaughter, and threatening/erratic behavior may result in felony charges and incompetency adjudications. Any act of violence in combination with a felony-level offense or signs of mental instability is sufficient to disable someone from possessing a firearm in Ohio.
Contact an Ohio Firearms and Weapons Defense Attorney
It is important to mount an aggressive defense to any type of firearms charge, including using a weapon while intoxicated. You want a law firm on your side that knows how to defend against this charge and minimize the consequences you face. Contact the experienced Ohio criminal defense attorneys at the Joslyn Law Firm today for a free firearms defense consultation online or by calling at 614-444-1900.