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DaveTN

Possession of handgun while under the influence

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Put a trigger lock on it and give her the key. That still wouldn't be foolproof but I think they would have alot harder time saying your in possesion of it then.

I think you are absolutely right. No lying to the cops, invoking the 5th or anything. :D

No immediate access, no physical control. thumbsup.gif

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No, it would fall threw at the hearing. That is if you played your cards right. You would have to argue that you didn't plan on drinking when you left the house. You attorney would have to show that you took every step possible to abid by the law. Most officers would only pull something like that if you where acting stupid, which happens alot.

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And here I thought my wife was the only one who thought I acted stupid!;)

Seriously, a trigger lock sounds like the way to go. You have put a lot of thought into keeping the firearm secured.

I would think that would hold a lot of weight.

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when i have been stopped in my commercial or personal vehicle, no passenger has ever been asked to produce ID. and let me also add that after having my license ran for a commercial vehicle checkpoint or inspection, i have never been asked if i was carrying a weapon.

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I don’t drink and drive, ever; so DUI will never be an issue to me. However… I do go out and drink if I have a DD.

Let’s say that I’m out shopping or running errands with the wife. Later we decided to go to a bar. Since I know I can’t take my gun in a bar, and I know I’m going to be legally intoxicated when I leave; I decided to secure my weapon in the vehicle. I clear the weapon, unload the magazine and store them in the rear compartments of my Suburban (I don’t have a trunk).

On the way home my wife gets stopped for speeding (she has not been drinking). While he is stopping me the Officer runs a license check and sees that I have a carry permit. Upon approaching my vehicle he sees that my wife is driving and I am sitting in the passengers seat. He asks if there are any weapons in the vehicle. I tell him that there is, but that it is unloaded and secured in the back on the vehicle.

The Officer decides to arrest me under 39-17-1321. Possession of handgun while under influence.

Do you think this charge would stand?

Discuss. ;)

yes I think it would stand and here's why. Thinking along the lines of a prosecutor because you didn't separate the gun from the ammo and they were simultaneously accessible, and is not in accordance with how the proper transporting of a firearm. which to my understanding is gun unloaded, and in the trunk and the magazine and ammo separated in the glovebox or other location not in the immediate vicinity of the firearm and not accessible at the same moment in time.

If the ammo/magazine was in the glovebox, and the firearm was in the trunk and unloaded, I think you'd be good to go.

Is the officer nitpicking? Yes. Is he justified in arresting? I think so, because it would be within the guidelines of the law. Could he be a nice guy and let you go? Sure. Does he have to? No.

Same applies to the prosecutor. But I think he would have to weigh in mitigating factors. Were you agitated and in state of anger during the stop? Were you verbally difficult with the officer? refusing to cooperate, or evading direct questions, lying, becoming belligerent.

Then as a prosecutor I have to weigh the pros and cons. Can I get a conviction? Can I get 12 members of a jury to find beyond a reasonable doubt that the suspect was in possession of a handgun while under the influence. There might be some HCP members on my jury or pro-gun members and how would they perceive this? They might perceive me (the prosecutor) as a threat to their privilege, and think I'm just being overly zealous and using a small technicality to nail someone to the wall to give me another victory to add to my resume, and they might find NOT GUILTY just to thumb their nose at me. Will this guy have a competent lawyer? Possible political fallout, media coverage and fallout? If I'm a prosecutor to trying to jump up the ladder and I'm toeing the line on a technicality, I'm avoiding this one like the plague.

If it were me as the prosecutor, and you cooperated, answered truthfully, and weren't all pissed off about something, I'd probably dismiss the charges and make sure you knew to separate the gun and the ammo in the future. Because to legally transport a firearm with a permit in the state of Tennessee, the gun and the ammo cannot be simultaneously accessible at any given moment, otherwise you're not within the law. If you have a permit this does not apply. However, it does apply in this case, because being under the influence is basically saying you're subject to following the same laws as someone without a permit during the period that you are in your state of being under the influence/intoxication and I see nothing in TCA that says it's illegal to transport a firearm while you're intoxicated so long as it's done properly, meaning weapon unloaded, ammo secured separately and not simultaneously accessible. In the scenario you mentioned above, it is not done properly because the ammo and weapon are not separated, are both are readily available simultaneously.

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I understand that the driver has an obligation to show identification for the privilege of driving, but as a passenger, wouldn't a verbal identification be sufficient? As long as no other criminal activity is suspected, why would a passenger be obligated to produce a driver's license?

wrong. It is generally standard operating procedure for all law enforcement officers to run the DL or Non-DL ID Card of every person in the vehicle. they do this to

1.) check for outstanding warrants

2.) so they can know who they're dealing with, and what the history of the individuals are. this is for their safety.

HCP is not a right. Correct me if I am wrong but I thought you were required to show your HCP to a Police Officer on request. I would think that “Is there a weapon in the vehicle now?†would be the next logical question. Are you saying that you think you have a right to not answer that question and still have your HCP remain in good standing?

hehe, we've had this discussion already before haven't we Dave? :D

Why would they revoke your permit for not answering a question? They're not going to do that; it's just a question. Now you're right, a permit holder must show the permit on demand from law enforcement, but I do not think they will lose their permit if they refuse to do anything else. And I'm not advocating that people just refuse to answer questions. Probably no better way to arouse an officer's suspicions. If someone finds themself in this situation they're going to have to say something. So what should it be? Heck I don't know, but they should probably just politely lie. Politely say there are no guns, then politely refuse a search of the vehicle.

P.Stegall. there was a huge debate on the legality of having to answer the officer's question as to the presence of a handgun, even after he has ascertained you to be a valid permit holder. I asked one of my professors at MTSU who holds a Law Degree, and he said yes you are legally obligated to answer because it is a concern of the Officer's Safety. Failure to answer can/will/may get you arrested, and subsequently get you referred to the D.o.S. for a review to pull your Permit because you are deemed a danger to the safety of LEO's, even though TN is not a "must inform" state (and I believe our legislators need to make that clear in the TCA because it is a gray area in regards to having to answer or not answer as to whether a weapon is present in the vehicle after the officer has ascertained that you have a permit to carry and it is in good standing and not in the state of being suspended or revoked.)

Look on page 2 at my first post, then continue reading through to the end. Very interesting topic.

http://www.tngunowners.com/forums/handgun-carry-self-defense/62469-pulled-over-last-night-carrying.html

Yea, I read it, but why would he run a license check in the first place to see that you have a carry permit? Do police normally ask to see ID from the passenger? It seems like you're trying to create a pretty implausible scenario.

again, they check for warrants, and so they can know if anyone in the vehicle may potentially have a history of violent criminal activity. it's for their safety.

The passenger in the case presented will almost never come into play. I can't see any reason why your name would even come up. An unloaded gun, out of your reach, ammo separate, is not anything I would worry about.

you're a passenger in the vehicle, the LEO wants to know who he is dealing with, do the passengers have warrants, and do they have any violent criminal history? so they can take precautions to protect themselves while doing their jobs.

Well, I will get this started. I am the police, and I arrest every one. It makes no difference if you are guilty of a crime or not, I just do it because I can.

Is that the right answer?

I can't believe this scenario. If an officer stops your wife for speeding, he will ask her for her license, unless you really show your a$$, he will never ask to see yours'. And if you do show your a$$, then you shouldn't be drinking anyway.

The law says that you can't be in possesion while intoxicated, if I could arrest you for this in your home, then I would have had to arrest my self and my wife at some point in our lives. And everytime that I went to a disturbance at a home where there was a drunk person, I wouldn't have to wait for them to go outside to arrest them. If you have placed the firearm into the rear of the vehicle and cleared it, the odds are no officer is going to screw with you.

I realize that no one has started cop bashing in this thread, but I figured I would give a reason to those of you that are just looking for one.

Let the bashing begin.

I hope this is just a sarcastic post and you're not really a LEO.

negative. you're a passenger in the vehicle, the LEO wants to know who he is dealing with, do they have warrants, and do they have any violent criminal history, so they can take precautions to protect themselves while doing their jobs.

No, permit or not, your wife can be "in possesion" of the gun in this circumstance.

but who makes that determination as to who is actually in possession? If an officer can use his discretion to ask you to step out of the vehicle and search you for weapons, drugs and search the vehicle for the same, just because he stopped you for a traffic violation, then I'm pretty sure that has that same discretion when making the arrest. Whether or not that charge holds up is up to the prosecutor and if it goes to trial, then it's up to the jury and the judge.

On the other hand, if you're riding around with your buddies and they are drinking beer in the car and you get pulled over, guess who's getting the ticket for open container, even though the driver wasn't drinking or under the influence or intoxicated? The driver. Why? Because he's driving, he's deemed responsible for the actions of everyone in the vehicle. If one of your buddies throws a vile of crack on the floorboard under your seat when you get pulled over, and they pull everyone out of the car and do a search and the vile of crack is discovered, but no one confesses to ownership, then the driver is automatically charged because he's the one driving, he's the one in the position of responsibility, legally it's his responsibility to know who is in his vehicle, and what those people in his car have. And as we've all seen in the past, ignorance of the law is no excuse and not a defense to prosecution.

So maybe the wife would legally be in "possession of the gun" because she is the driver and therefore responsible for the vehicle and the contents of the vehicle and since she is not intoxicated or under the influence, there is no crime and all the HCP carrying passenger has to say is "I have my permit, here it is". To which the officer asks "Are there any guns in the vehicle?" Passenger replies, "yes there is, but it's not my gun, it's hers, I left mine at home" and then the driver verifies it is her gun. Since she has verified it is her gun, and she is responsible for the vehicle and it's contents, the question of the passenger being in possession of a firearm while under the influence becomes null and void and there is no crime.

it really comes down to little keywords, and technical legal stuff.

in a courtroom, there's a big difference between a gun and ammo being "stored" in compartments in the "rear" of the vehicle.

as opposed to

a gun being "locked" in the rear compartment of the vehicle and the ammo being "locked up" in the "front" of the vehicle.

it is unloaded, secured with ammo loacked away...the gun is in transport. It is legal, and she is not drinking.

nowhere in the OP's original post did he say "locked away" he said "stored" in the rear compartments, you're making an assumption with your statement that the unloaded gun is locked up in a compartment, and that the ammo is locked up in another compartment and not in the same vicinity ast the weapon.

Since both gun and ammo are in rear area of the vehicle, and most vehicles I know of usually don't have locking compartments, if I were a LEO, then I would be reasonable to think and believe that neither the gun nor the ammo is locked up, and therefore simultaneously accessible, which makes this situation a crime under the TCA for being in possession of a handgun while under the influence or intoxicated.

Also, the officer didnt stop YOU, he stopped your wife, so unless you were a beligerant ass to him to draw attention to yourself, as a passenger, he has no reason to run your license...just hers. ;)

wrong. it's standard operating procedure to check for warrants and so they can know if anyone in the vehicle may potentially have a history of violent criminal activity. it's for their safety and they're completely within their rights to verify ID of everyone in the car regardless of how nice you are.

Yea, a lock box would be even better. One of the ones that bolt to the floor or something.

now this is a smart fellow, you get an attaboy!!!

gun unloaded locked up in the lockbox. ammo locked up in the glovebox and there's absolutely no issue whatsoever with this scenario, and I would have to think the officer would be out of line for the arrest, and the prosecutor would be ill-advised to push this one to trial, because even a rookie lawyer would pick this one apart like Tom Brady picking apart the Titans defense as he did 2 years when they slaughtered them 59-0.

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Yes, it could stick. Anytime alcohol is involved (even in your home BTW) you have handed over discretion to the judicial system. Depending on officer and judge you will have no defense. It will be up to their judgment how much to enforce or how much mercy is shown.

Are you saying that if I decide to tear into a bottle of whiskey at home, that I need to carry my safe to the neighbor's house first?

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If you are at home and drunk and someone breaks in with intent to kill you do you not have a right to use a gun for defense?

A good shoot is still a good shoot.

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Wyattearp, you do realize you are debating with posts that are 3 plus years old?

I just saw that. this horse was kilt long ago.

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Wyattearp, you do realize you are debating with posts that are 3 plus years old?

well **** the bed. I didn't even notice the date, haha. I thought we had an on going legal debate here.

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well **** the bed. I didn't even notice the date, haha. I thought we had an on going legal debate here.

I was debating with "young" Smith. He's still around ;)

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I was debating with "young" Smith. He's still around ;)

I think I was saying that the person filling out the report carries a lot of discretion and interpretation. IIRC but then again, I've had more kids since this thing started so my memory isn't that great.:D

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I think I was saying that the person filling out the report carries a lot of discretion and interpretation. IIRC but then again, I've had more kids since this thing started so my memory isn't that great.:D

Yep. That's why I just shake my head when somebody goes out of their way to piss off the police. They got some wiggle room.

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Yep. That's why I just shake my head when somebody goes out of their way to piss off the police. They got some wiggle room.

Interesting

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well **** the bed. I didn't even notice the date, haha. I thought we had an on going legal debate here.

It was still a good read Wyatt :D

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