F.S. 790.151 – Using a Gun Under the Influence of Alcohol or Drugs

Alcohol and guns don’t make a great mix. In Florida, using a gun under the influence of alcohol or drugs is a crime, as outlined in F.S. 790.151.

As a Fort Lauderdale gun defense lawyer can explain, it doesn’t matter if you’re otherwise fully allowed to carry a concealed firearm in Florida. It doesn’t matter if you didn’t pull the trigger or point the gun at someone. It doesn’t matter if no one was hurt or you’ve never been arrested for another crime in your life.

Here’s what police and prosecutors have to prove to get a conviction for using a gun under the influence:

• You used a firearm. This could mean that you discharged it, but it could also mean that you simply had it readily accessible for immediate discharge. That means it was loaded and in your hand.
• While using that firearm, you were under the influence of alcohol or drugs. This can include controlled substances that may be lawfully prescribed to you.
• Your normal faculties were impaired. This means that your ability to function normal mental and physical activities has been diminished due to the effects of consuming alcohol or drugs.

In determining whether you were under the influence at the time of the alleged incident, F.S. 790.157 states that there is a presumption of impairment if the results of any blood, chemical or breath test in accordance with this investigation showed that your blood alcohol level (BAC) was 0.10 percent or more by weight. However, if your BAC is 0.05 or less, it will be presumed that you were NOT under the influence of alcohol. However, if your BAC was higher than 0.05 but less than 0.10, it is not presumed that you were impaired by alcohol, but it can be used as evidence against you.

If you’re convicted of using a firearm while under the influence in Florida, it’s a second-degree misdemeanor. Maximum penalties are 60 days in jail and a fine of up to $500.

That said, you could be facing far more serious charges if the offense in any way involved:

• Pointing the gun at and/or threatening anyone with it.
• Discharging that gun in certain places where they’re prohibited, such as airports, police stations, courthouses, schools, etc.
• Physical harm inflicted on another person, whether due to shots fired or hitting someone with the gun itself or the shots fired causing a chain of events that results in injury.

Such incidents would likely be charged as felonies. In fact, sometimes clients are initially charged with these more serious felony offenses that carry the possibility of years in prison, and we can successfully negotiate with prosecutors to reduce the offense to this second-degree misdemeanor.

In either case, you should not delay contacting an experienced Fort Lauderdale defense lawyer, as there may be numerous ways in which we can minimize the impacts of this case to your life.

Defenses to Allegations of Using a Firearm Under the Influence

If you are accused of having used a firearm under the influence in Broward County, some possible defenses your criminal defense lawyer might employ:

• You weren’t under the influence and your normal faculties weren’t impaired. If your blood-alcohol level was 0.05 percent or less or the impairment testing was flawed or unreliable, we might successfully argue there’s not enough evidence of your impairment.
  

• You were not using the firearm, as defined by statute. This typically means we’ll argue that the firearm wasn’t readily accessible.
• Self defense. Let’s say you’re at home enjoying some beers and someone breaks into your home and you grab for your gun. Yes, you used the gun. Yes, you were impaired. But this could conceivably be a lawful exception because you were acting in self-defense or defense of your property.
• The state’s evidence is lacking to prove that you actually used the firearm, as defined in statute, or that you were impaired. The burden of proof is on the state. So if they only have one witness or unreliable witnesses (were they impaired?) or a grainy video or unclear audio, this may be enough to raise reasonable doubt.

If you’re charged with using a firearm while under the influence of alcohol or drugs, it’s important to contact an experienced criminal defense attorney as soon as possible following your arrest. Also, it’s generally wise to invoke your Fifth Amendment right to stay silent unless/until you’ve had a chance to speak to a criminal defense attorney.

Contact the experienced Fort Lauderdale criminal defense lawyers at The Ansara Law Firm, by calling (954) 761-4011 or toll-free at (954) 761-4011.

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