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Pistols with DUI & intoxication- Fairfax criminal lawyer on the risk

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Pistols defense when alcohol is involved - Image of revolver with rounds

Pistols with DUI or intoxication can be risky in Virginia says Fairfax criminal lawyer

Pistols are ubiquitous in Virginia, which is one of the nation’s most gun-friendly state. As a Fairfax criminal lawyer, I delighted in reading the Virginia Supreme Court’s recent ruling that the statutory prohibition on carrying an otherwise permitted and concealed handgun while under the influence of alcohol or illegal drugs, applies when the handgun is actually being carried on the suspect’s person, rather than next to him or her. Morgan v. Commonwealth of Virginia, ___ Va. ___ , 2022 WL 17982142 (Dec. 29, 2022). Why Morgan had to wait so long from his trial conviction and intermediate appellate court affirmance to obtain the right result is a story within itself.

What does the Virginia Code say in prohibiting carrying permitted and concealed pistols while under the influence alcohol or illegal drugs?

The pertinent statutory language for the foregoing pistols prohibition provides that: “Any person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor. Conviction of any of the following offenses shall be prima facie evidence, subject to rebuttal, that the person is ‘under the influence’ for purposes of this section: manslaughter in violation of § 18.2-36.1, maiming in violation of § 18.2-51.4, driving while intoxicated in violation of § 18.2-266, public intoxication in violation of § 18.2-388, or driving while intoxicated in violation of § 46.2-341.24.” Virginia Code § 18.2-308.012(A) (Carrying Under the Influence Statute or CUIS). In 2021, the lower Virginia Court of Appeals affirmed Morgan’s conviction even though the firearm in question was concealed in a backpack in the front passenger seat area rather than in a holster or pocket on his person. The following language from the Virginia Supreme Court’s Morgan decision explains how the court ended up reversing Morgan’s conviction: 

“By enacting Code § 18.2-308.012, the General Assembly specifically targeted persons permitted to carry concealed handguns and sought to prevent them from carrying that handgun in a public place while intoxicated. When reading the statute in context with the public place aspect, it is evident that the General Assembly did not envision criminalizing the transportation of a handgun within a bag located in a vehicle. Rather, the legislature sought something more specific. It intended to deter intoxicated individuals from physically carrying a concealed handgun – whether it be in their waistband, pocket, etc. – in and out of public establishments. Contrary to the Commonwealth’s argument, allowing a broad interpretation would stretch this purpose and punish behavior the legislature never intended to forbid. Indeed, if ‘carry’ included transportation, it would add another charge to an intoxicated individual who attempted to act responsibly by placing his holstered weapon in the trunk of his vehicle. Accordingly, we hold that ‘carry’ within the meaning of Code § 18.2-308.012 is limited to physically carrying the handgun on one’s person such that it moves when he moves.” Morgan on this pistols statute.

Does the Virginia Supreme Court’s Morgan decision make it okay for me to drive with a handgun while under the influence of alcohol or illegal drugs?

The Virginia Supreme Court’s recent Morgan opinion on the prohibition of carrying a permitted concealed pistols while under the influence of alcohol and illegal drugs is great for avoiding such a conviction if the handgun is not attached to the defendant’s person. Nonetheless, do not be surprised if your sentencing judge imposes a harsher sentence for a Virginia DUI conviction if the judge knows that a weapon was nearby you at the time you were operating a motor vehicle in such a state of non-sobriety. Nonetheless, if you are wrongfully charged with violating Virginia’s Carrying Under the Influence statute, that is all the more reason to obtain a qualified lawyer to defend you. In my last defense against that statute — before the Virginia Supreme Court issued the Morgan decision — I won against a charge of violating the Virginia DUI law and the CUIS through a lengthy and successful hearing on my motion to suppress my client’s arrest for DUI.

Why hire Jon Katz for your Virginia DUI defense and criminal defense?

When you hire Fairfax criminal lawyer Jonathan Katz for your Virginia DUI and criminal defense, you have on your side a battle-tested lawyer who has successfully defended hundreds of accused people at trial, and thousands of felony, misdemeanor and DWI defendants overall, from pistol prosecutions to drugs, sex offenses, assault, and more. Jon busts his butt for his clients in pursuing their best possible defense, and treats each client and their case as a unique challenge that takes a tailor-made approach, and not a cookie cutter defense. Find out the positive difference that criminal defense lawyer Jon Katz can make for your defense by calling 703-383-1100 for your free in-person initial consultation about your court-pending criminal case.

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