Florida criminal law1 provides that it is illegal to use a firearm while you are under the influence of alcohol, chemical substances, or drugs to the point that your normal abilities are impaired. This bit of news actually upset some friends and family when I let them know about it.
If you are accused of this offense, you can be found guilty of a second degree misdemeanor where penalties include up to sixty days in jail and a fine of up to $500. If you really blow it representing yourself or act up in court, you can actually get six months of probation fees and restrictions on top of that jail time.
If accused of committing any other crimes in the process of violating this firearms law, you can be subject to much harsher punishment. This misdemeanor offense easily escalates to a felony charge if the incident ends up causing injury or death. You can lose your firearm rights in a heartbeat if a no contact order is issued as a result of the incident, regardless of whether there are any injuries or deaths. Like arrests for domestic violence or felony offense, firearms rights are taken first, and legal questions about whether they should have been taken are asked later.
Depending on the circumstances of your case, claims that you used a firearm while intoxicated can have various – and serious – consequences if you are convicted. If you are a military service member, a firearm while intoxicated charge is a major problem with your chain of command. On or off the installation, this is a charge that can seriously affect your military career.
Elements of the Charge as a Second Degree Misdemeanor
The State must prove that:
- You discharged a firearm, or a firearm was loaded and in your hand ready to be discharged; and,
- Your normal abilities were impaired by alcohol, chemical substances, or controlled substances.
Chemical substances2 under Florida law include any compound or liquid containing nitrous oxide, toluene, acetone, diethyl either, or other similar substances that are used for the purpose of getting high or intoxicated, or which distort your auditory, visual, or mental faculties. Controlled substances, or drugs, are those substances regulated under Florida’s drug schedules3 and include substances such as heroin, meth, cocaine, and marijuana, or any chemicals used in the manufacturing of these controlled substances. This is common sense, to a degree: notice how specifically this is laid out, and remember that Florida schedules have sub-subsections that contain over 100 chemicals.
As a tactical note, I try to be very specific about impairment. Impairment due to alcohol or drugs when driving a motor vehicle is not the same thing as impairment to handle and operate firearms safely. In you typical DUI case in the First Circuit, (Okaloosa, Santa Rosa, Walton, Escambia counties) the police use a lot of governmental power to force you to give alcohol blood or breath test evidence. I’ve never handled or ever heard one of these cases where there was blood, breath or urine testing, despite very clear statutory sections on the methods and presumptions of impairment. Here in the real world, this protocol is rarely followed in second degree misdemeanor cases.
If you have been charged with using a firearm while intoxicated, there are many defenses available that can help fight this charge that are beyond the scope of this post. Briefly: self-defense, property defense, necessity, evidence suppression, other case law and/or factual matters and cannot prove the elements.
Let a Certified Fort Walton Beach Criminal Defense Attorney Help Fight Your Firearm Offense Charge, Felony or Misdemeanor
If you or someone you love has been arrested or charged with using a firearm while intoxicated, don’t just speak with an experienced criminal defense attorney, speak with a specialist. Attorney Stephen G. Cobb is an expert in Florida criminal law. He is certified professionally by the Florida Bar4. Schedule your consultation by calling and let a qualified and strategic Fort Walton Beach criminal defense attorney help you fight your firearm charge today.
1 https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0790/Sections/0790.151.html2 https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0877/Sections/0877.111.html3 https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0800-0899/0893/Sections/0893.03.html