Possession of a Firearm While Intoxicated

The charge of “Possession of a Firearm While Intoxicated” frequently comes up whenever a CPL / CCW holder is arrested for OWI if the driver has a weapon inside the vehicle.  The CPL / CCW holder does not need to be actually carrying the weapon for prosecutors to tack this charge on to an OWI charge.  If a pistol is located in the glove box, for example, prosecutors can make a good argument that it is close enough and readily accessible such that the driver is in possession of the gun.

The actual statute that proscribes possessing a firearm while intoxicated is very broadly written.  It states:

“An individual shall not carry, have in possession or under control, or use in any manner or discharge a firearm under any of the following circumstances:

(a) The individual is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.

(b) The individual has an alcohol content of 0.08 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) Because of the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the individual’s ability to use a firearm is visibly impaired.”

MCL 750.237 [emphasis added.]

The phrase, “have in possession or under control,” is subject to broad interpretation.  If we compare it to the rules prohibiting a felon from possessing a firearm, convicted felons routinely face charges if they have guns hidden in their attic or basement where they cannot readily grab the weapon.  These convicted felons are charged because they “have in possession” a firearm, and the charges stick.

But say you are gun collector.  You are an extremely cautious gun collector, and you employ child locks on all firearms.  You also keep your guns locked in a large gun safe.  You are the only person with the combination.  The gun safe is in your bedroom, which you keep locked at all times.   You are the only person with a key.  No one is going to touch your guns without your permission.

And then one night, you decide to have a couple of drinks.  You know better than to drink and drive, and you have no intention of leaving your home.  You get drunk…

Who is in possession of your guns after you get drunk in your home?  That’s right.  You.

Are you breaking the law by having those guns locked up in your bedroom?  Probably not.  Obviously, the statute is poorly drafted because it does not acknowledge that you are allowed to drink in your own home.

On January 27, 2011, 52-1 District Court Judge Brian MacKenzie threw out charges pending against former state Speaker of the House Craig DeRoche for possessing a firearm while intoxicated.  Judge MacKenzie held that the constitutional right to own a gun isn’t negated just because someone is drinking in their own home.  DeRoche was alleged to have been waiving the firearm around his home before police arrived.  When police got to the home, the gun was unloaded on one floor of the home, while DeRoche was on another floor.

Obviously, DeRoche’s conduct is not identical to the ultra-safe gun owner example, but the application of the law is exactly identical in both cases.  The prosecutors have filed an appeal with the Oakland County Circuit Court.  Insiders say that the prosecutors could have resolved this case without forcing Judge MacKenzie to make a difficult decision, but Prosecutor Jessica Cooper’s office has opted to press this issue.  She hopes to broaden the provisions of the law to include the ultra-safe gun owner because, quite frankly, her policies reflect that she is both anti-alcohol as well as anti-gun.

Rumors have it that the NRA has intervened in the appeal.  Let’s hope the circuit court judge affirms Judge MacKenzie’s ruling.