Using a Firearm While Under the Influence - Florida Statute 790.151

weapons offenses

If you go to a gun show, you’ll almost always find a bumper sticker or a t-shirt saying, “Alcohol, Tobacco, and Firearms- who’s bringing the chips?” Another clever rephrasing says, “Alcohol, Tobacco, and Firearms should be a convenience store and not a government agency.” While combing all three of these sounds like a great weekend party with the guys, mixing alcohol and firearms can be deadly and get your arrested.

What the State Prosecutor Has to Prove to Convict You

For the prosecutor to convict you under Florida Statute 790.151, the prosecutor must prove beyond a reasonable doubt:

(1) You used a firearm; and

(2) You were under the influence of alcohol, a chemical substance, or a controlled substance to the extent that your normal faculties were impaired.

Used a Firearm

A firearm is any weapon that fires a projectile by explosive or could be converted to do so. This includes lower receivers, silencers, machine guns, destructive devices, and even starter pistols used at athletic events.

You must have either discharged a firearm or have the gun loaded in your hand. An unloaded gun in your hand will not be enough to convict you and neither will a loaded gun outside of your actual possession.

Under The Influence

You must be under the influence of alcohol, a chemical substance, or a controlled substance at the time you were firing the gun or you had a loaded gun in your hand. Alcohol and drugs take a while to get into your system to start affecting you. Let’s say you are shooting and you start drinking a beer. Are you breaking this law? No, you have to actually be under the influence at the same time as you are firing the gun or holding a loaded gun.

Chemical substances are used by people to get “high.” They can eat, drink, and inhale these chemicals into their system. Florida Statute 877.111 lists the chemical substances as:

(1) Toluol;

(2) Hexane;

(3) Richloroethylene;

(4) Acetone;

(5) Toluene;

(6) Ethyl acetate;

(7) Methyl ethyl ketone;

(8) Trichloroethane;

(9) Isopropanol;

(10)Methyl isobutyl ketone;

(11)Ethylene glycol monomethyl ether acetate;

(12)Cyclohexanone;

(13)Nitrous oxide;

(14)Diethyl ether;

(15)Alkyl nitrites (butyl nitrite); or

(16)Any similar substance for the purpose of inducing a condition of intoxication or which distorts or disturbs the auditory, visual, or mental processes.

There are many things listed as controlled substances in Florida Statute 839.03. You might be on a medication with a prescription from a doctor and accidentally violate this law. It is best to stay away from firearms if you are taking any type of controlled substance that could maybe impair your normal faculties.

Exception

This law does not apply to people who are under the influence and are exercising their right to self-defense or defense of their property. While this is an exception, prosecutors are going to still be pursuing the case because from the prosecutor’s point of view, a person defending themselves looks similar, at times, to a criminal attacker.

Punishment

This crime is a second-degree misdemeanor that is punishable up to 60 days in jail and a $500 fine.

Contact The Law Office of Roger P. Foley, P.A.

There are many different scenarios surrounding this type of crime. It is best to talk to one of our attorneys at The Law Office of Roger P. Foley, P.A. about your options and available defenses. We serve the South Florida area and focus on criminal matters. Call us today and schedule a consultation.

Click on the following reviews to see what clients are saying about us
Client Reviews
I was charged with Domestic Violence few years ago and I was referred to Roger Foley from a family member! Roger is a BULLDOG! He was great and very aggressive in helping me beat this bogus case. Case was dismissed! He was on top of everything until the end!!
Now again in need of his help and wouldn't go anywhere else!
HIGHLY RECOMMEND
★★★★★
My wife (Mother of Stepson) and I Hired Mr Foley to represent my stepson in a minor criminal case. We would highly recommend as it is obvious to us That Mr Foley Genuinely cares and wants to do the Best he can for you which he did for us. Also has a great rapport with all parties in the courtroom..... Steve
★★★★★
Roger P. Foley got me reinstated. Also he got my COS waived, an got me to still be terminated off of probation on my expected termination date. I feel very comfortable with the decision my lawyer made for me. Also i would refer him to anyone who has a criminal felony or misdemeanor case. Jamar
★★★★★
Roger is a very compassionate person, he truly cares about his clients. He helped me with my case and was there for me every step of the way even if it was just reassurance that I needed. I would recommend him to anyone, he is absolutely the best! Cassandra G.
★★★★★
I think your firm did a great t job on 3 cases that were 28 years old. The results are better than expected. I truly appreciate the hard work that you and your firm put forth in obtaining the results that we did on this case. Jim
★★★★★