Utah lowering legal DUI limit to 0.05% provides impetus to correct some problems

[utbagpiper]

Since my prior thread on Utah's new BAC limit got locked after it turned into the place for a few folks to discuss the minutia of North Carolina's alcohol laws, our moderator has indicated that new threads need to be started as appropriate.

A strict reading of Utah's statutes on carrying a gun while intoxicated reveal several long standing potential problems in terms of things like using a gun in self defense after having had a few drinks. I'm not sure these problems have manifest in terms of unjust prosecutions. But I'd rather not rely on prosecutorial discretion in such matters.

There may be an opportunity to correct some of these defects. If anyone can point to specific problems in Utah's laws regarding possession or otherwise lawful use of a gun in self defense while having a BAC higher than permitted for driving, please point me to the specific code section.

And please, let's keep this on topic. This isn't the thread to discuss other States' laws, nor even to opine about abuse or powers at checkpoints. I'm looking for citations to specific sections of Utah code where we can make the case that law-abiding gun owners could be put risk for otherwise lawful, reasonable, moral behavior simply because they had a few drink first.

Thanks

 

[OC for ME]

From the closed thread.

Is the a exception for lawful self defense? Does the law(s) apply while in your own home?

MO has a different, and logical/realistic, approach to guns and adult beverages.


RSMo 517.030.1 A person commits the offense of unlawful use of weapons, except as otherwise provided by sections 571.101 to 571.121, if he or she knowingly:

(5) Has a firearm or projectile weapon readily capable of lethal use on his or her person, while he or she is intoxicated, and handles or otherwise uses such firearm or projectile weapon in either a negligent or unlawful manner or discharges such firearm or projectile weapon unless acting in self-defense; or


I see this a means to harm our right to keep and bear arms.

I inject Missouri's statute wording only to provide alternative wording to Utah's statute. Remove the BAC component and focus on the specific conduct with a firearm. If a firearm is never removed from a holster, or a bed side table drawer, what business is it of the state how much a citizen as consumed. LE will/should focus on the specific circumstances regarding the use of a firearm whether or not the citizen has anything to drink or not.

A BAC component in Utah's law is a means to erode individual liberty.

 

[utbagpiper]

From the closed thread.
I inject Missouri's statute wording only to provide alternative wording to Utah's statute. Remove the BAC component and focus on the specific conduct with a firearm. If a firearm is never removed from a holster, or a bed side table drawer, what business is it of the state how much a citizen as consumed. LE will/should focus on the specific circumstances regarding the use of a firearm whether or not the citizen has anything to drink or not.

Thank you. I certainly think this is worthy of consideration. The differences between "possession", "carrying", "handling", and "discharge" are well worth thinking about.

The analogy I'm drawing is to actual DUI. We don't (or shouldn't) cite for DUI just because you have a car in the driveway/parking lot and keys in your pocket. On the flip side, neither should society have to wait until the drunk driver actually injures someone before penalties are enforced. Operating a motor vehicle on the road, while intoxicated/impaired is rightfully a crime because of the level of danger, the likelihood of risk, it imposes on others. (I think the best explanation of this was provided by Marshaul at one time. I'll have to see if I can find his post.)

But where is the line crossed? Is it DUI if a guy climbs into the back seat to sleep if off for a while? What about if he sits in the driver seat but leaves the keys in his pocket? Starts the car to run the heater, but doesn't put the car into motion?

Back to the topic at hand: If the gun isn't handled at all, it can't be handled negligently. Is that the proper line? Or should the limit be having the gun on your person?

There is both theory, and practical considerations here. Politics is the art of the possible.

I do appreciate the template language. Thank you.

A BAC component in Utah's law is a means to erode individual liberty.

It may well have that effect. But I believe it was put in as a matter of public safety. It over-reached. But I don't think many of my State legislators actually have a goal to erode individual liberty. While there are those who chafe at any law as an erosion of liberty, I think our liberties are more secure when just and proper laws are in place than in a state of anarchy. I believe the stanza from "God Bless America" is appropriate, "Confirm thy soul in self control, thy liberty in law."

In any event, I think we have a chance to improve this law to avoid infringements of individual liberty and I appreciate your thoughts on ways to do that while maintaining the individual responsibility not to behave negligently or impose risks on others.

Charles

 

[OC for ME]

A few thoughts on the relevant statutes:

76-10-528. Carrying a dangerous weapon while under influence of alcohol or drugs unlawful. (1) Any person who carries a dangerous weapon while under the influence of alcohol or a controlled substance as defined in Section 58-37-2 is guilty of a class B misdemeanor. Under the influence means the same level of influence or blood or breath alcohol concentration as provided in Subsections 41-6a-502(1)(a) through(c).

There does not seem to be a exception for lawful self defense as is located in Missouri's RSMo 571.030.5. There may be a exception located in Utah's self defense statutes, I do not know.

41-6a-502. Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration -- Reporting of convictions. (1) A person may not operate or be in actual physical control of a vehicle within this state if the person:
(a) has sufficient alcohol in the person's body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test;
(b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or
(c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.

It appears that being asleep in the back seat is a violation of this statute. This is problematic given that some folks have motor homes and could be held in violation of this statute.

Anyway, unlike driving while intoxicated, a properly holstered hand gun will not harm anyone. Unlike driving while intoxicated, handling the firearm must be viewed on a case by case basis. It appears to me that Utah does not take this approach. Public safety trumps our RKBA if interpret these statutes correctly.

Utah case law may/should have some influence on these statutes. Personally I would lobby to not have the BAC limit lowered, at a minimum. I would lobby to have the statutes address acts done, not address mere possession as we do here in Missouri.

But I don't think many of my State legislators actually have a goal to erode individual liberty. - utbagpiper

Based on the current and proposed statute language I must respectfully disagree.

Good luck.

 

[OC for ME]

Thank you. ...

My pleasure.

It may well have that effect. But I believe it was put in as a matter of public safety. It over-reached. But I don't think many of my State legislators actually have a goal to erode individual liberty. While there are those who chafe at any law as an erosion of liberty, I think our liberties are more secure when just and proper laws are in place than in a state of anarchy. I believe the stanza from "God Bless America" is appropriate, "Confirm thy soul in self control, thy liberty in law."

In any event, I think we have a chance to improve this law to avoid infringements of individual liberty and I appreciate your thoughts on ways to do that while maintaining the individual responsibility not to behave negligently or impose risks on others.

Charles

Many laws are passed without any regard to the implications regarding our individual liberty. Public safety must not be the default, and unimpeachable, justification for enacting any law that directly impacts our enumerated rights. The language of the subject statutes are ripe for judicial interpretation. Legislatures must enact laws that limit the opportunities to have a judge interpret legislative acts.

 

[DrMark]

I just returned from a week in Utah (SLC / Hill AFB / Leyton / Ogden / Park City) and the legal focus on matters of alcohol does feel more acute in the state (as compared to most other states). From control of alcohol content in beer to showing ID to eat in restaurants... I'm not surprised that the legislature is continually trying to tweak law as is relates to alcohol, leaning toward the more stringent.

That said, I found the area to be a wonderful, beautiful place to visit. Best of luck to our Utah members in their push for greater freedom.

 

[OC for ME]

ID required to eat food?

 

[DrMark]

ID required to eat food?

I had a Coke with my fish dinner, but needed to show ID to enter the restaurant. Probably related to their alcohol serving license.

 

[JoeSparky]

snip...

The analogy I'm drawing is to actual DUI. We don't (or shouldn't) cite for DUI just because you have a car in the driveway/parking lot and keys in your pocket. On the flip side, neither should society have to wait until the drunk driver actually injures someone before penalties are enforced. Operating a motor vehicle on the road, while intoxicated/impaired is rightfully a crime because of the level of danger, the likelihood of risk, it imposes on others. (I think the best explanation of this was provided by Marshaul at one time. I'll have to see if I can find his post.)

But where is the line crossed? Is it DUI if a guy climbs into the back seat to sleep if off for a while? What about if he sits in the driver seat but leaves the keys in his pocket? Starts the car to run the heater, but doesn't put the car into motion?

...snip

Actually, at least one officer in Utah has told me that an inebriated person sleeping in the back seat of a vehicle parked in a parking lot while having the keys to that vehicle in possession IS guilty of violating the law and can be /has been successfully prosecuted for DUI.

 

[utbagpiper]

ID required to eat food?

All bars require patrons to show ID to enter. No one under 21 allowed in bars. Some bars serve really good food. They also provide one of the few places in Utah devoid of children.

That said, I found the area to be a wonderful, beautiful place to visit.

No. You must be mistaken. Utah is a terrible place. Can't get a drink here at all. Nothing to do. Very boring. Gun hating, tax-and-spend liberal California refugees should avoid Utah at all costs. Stop in Nevada. Or go around Utah to Colorado. But don't stop in Utah. Don't even drive through Utah. Avoid flying over Utah if at all possible. Terrible, terrible place. /sarcasm

All joking aside, I'm glad you enjoyed your visit.

Utah's alcohol laws are the result of having two diametrically opposed groups trying to live near each other peacefully. There are those of us who prefer that alcohol not be a dominant part of social or public life. There are also those who want Utah's alcohol laws to look like Las Vegas or NYC. The result is an ongoing, uncomfortable dance that results in some "interesting" laws. The official mission statement of the Utah Department of Alcoholic Beverage Control is (roughly), "To make alcohol available to adults who wish to responsibly imbibe while not encouraging nor promoting the use of alcohol."

Most interesting (and to bring this thread back on topic) is that uptight Utah has never (in modern times, that I'm aware of) banned guns in bars, nor even banned possession while imbibing. As noted, our law does ban "carrying" while intoxicated. With the upcoming reduction in our legal BAC limit for driving, we realized that would affect lawful carrying of guns, and potentially provide an opportunity to correct some other aspects of our ban on carrying while intoxicated. We're hoping to make sure that we have some kind of reasonable exemption for otherwise lawful use of a gun in self defense after having had a couple or (or more) drinks.

Charles

 

[utbagpiper]

Actually, at least one officer in Utah has told me that an inebriated person sleeping in the back seat of a vehicle parked in a parking lot while having the keys to that vehicle in possession IS guilty of violating the law and can be /has been successfully prosecuted for DUI.

I've heard the same thing. I think that is going too far.

To the topic at hand, what do you think is the proper line to draw on firearms and intoxication?

Should we push to allow an intoxicated person to carry a holstered gun as long he doesn't handle it? Or should possession while intoxicated be banned?

In either case, we've got to have some kind of exemption for otherwise lawful self-defense. A person should not forfeit his right to self-defense simply because he has a few drinks, or even if he is falling down drunk. If he has bad judgement and does something to harm or endanger innocent others that is on him. But if he can manage to defend himself when such defense is legally justified, without harming or endangering innocents, he should not face criminal charges for that, IMO.

I recall the fellow who recently shot his girlfriend in self-defense after she came at him with a knife. No charges in the shooting. But a serious criminal charge because he was in possession of marijuana at the time and thus was prohibited from having the gun. Local media report available here.

Charles

 

[JoeSparky]

I've heard the same thing. I think that is going too far.

To the topic at hand, what do you think is the proper line to draw on firearms and intoxication?

Should we push to allow an intoxicated person to carry a holstered gun as long he doesn't handle it? Or should possession while intoxicated be banned?

In either case, we've got to have some kind of exemption for otherwise lawful self-defense. A person should not forfeit his right to self-defense simply because he has a few drinks, or even if he is falling down drunk. If he has bad judgement and does something to harm or endanger innocent others that is on him. But if he can manage to defend himself when such defense is legally justified, without harming or endangering innocents, he should not face criminal charges for that, IMO.

I recall the fellow who recently shot his girlfriend in self-defense after she came at him with a knife. No charges in the shooting. But a serious criminal charge because he was in possession of marijuana at the time and thus was prohibited from having the gun. Local media report available here.

Charles

Personally, I see a fundamental right being INFRINGED because one MIGHT make a bad choice is a VERY BAD STANDARD--- they may just as well MIGHT make a good choice in using a tool in a justified manner to protect themselves and / or those about them.

There is a difference between what I see the Legal limitation should be and WISE choices would be. Just the same principle we use as "training". I encourage any and all to obtain training before using, handling, or carrying a firearm, BUT I do not support ANY law that mandates "training" before one is allow to exercise this fundamental right. I would encourage one to NOT be in possession of a firearm while intoxicated --- my own personal standard (But, since I don't drink it is not a limit on me).

I think the UNJUSTIFIED use of a firearm weather intoxicated (exceeding the legal limit) or NOT should be the limit where criminalization of action should be imposed-- not the simple possession while intoxicated which is currently illegal no matter if the use is otherwise justified!
Too many of the sentencing enhancement schemes where a simple possession of a firearm during the commission of a crime add a mandatory increase of time to be served but where the gun is simply possessed but NOT actually displayed, handled, used in a manner to intimidate or coerce another to acquiesce to the demand go too far--- Versus, actually USING a weapon as an integral part of the crime.

Now, have I rambled on enough?

 

[OC for ME]

...

To the topic at hand, what do you think is the proper line to draw on firearms and intoxication?

Should we push to allow an intoxicated person to carry a holstered gun as long he doesn't handle it? Or should possession while intoxicated be banned?

...

Charles

The former and not the latter. Carry/possession must not be criminalized after a frosty friendly or two, or three. Only the use of a firearm must be scrutinized. If used lawfully, no consequences, if used unlawfully then appropriate consequences should be imposed.

Example: You enjoying a beer after working your land, near the road, a cop drives by and sees you with a beer in hand a pistol on your hip. Under current Utah law that cop has RAS to enter your land, without permission, and compel you to take a sobriety test. Or, a cop sees you with a pistol on your hip, beer in hand, at a friends place while enjoying a Saturday afternoon BBQ, again RAS is present.

Handle/carry/possession must not be the standard, else you could not remove your pistol from your holster to lock it in your vehicle's secure storage, even if on your own property. It must be what you do with a firearm that is the minimum standard. Mere possession/carry must be untouchable by the state. Utah, at this time does not agree and is in the process of eroding your individual liberty even further. Where you may carry in Utah is not/should not be the focus where this proposed legislation is concerned.

I note that possession could be used interchangeably with carry since the word possession is not in the relevant Utah statutes.

 

[utbagpiper]

The former and not the latter.

Thanks for your thoughts.

Just a few corrections and counter thoughts.

I don't think seeing a person with a gun and a beer is RAS for anything. No law against drinking while armed in Utah. Stumbling about or otherwise looking impaired while armed would create RAS, IMO.

I think there is a difference between possession/carry and handling, and a difference between being in public and on your own land or in your own home. We should probably avoid conflating these different cases.

I would prefer if we could avoid the rhetoric of "eroding rights" in Utah law as I can demonstrate a 20+ year history of regaining and enlarging statutory respect for our RKBA. While no legislator is perfect, we've got a decent crop who are working to conservatively roll back bad laws while creating some needed, new good laws in this regard.

Thanks

Charles

 

[utbagpiper]

Personally, I see a fundamental right being INFRINGED because one MIGHT make a bad choice is a VERY BAD STANDARD--- they may just as well MIGHT make a good choice in using a tool in a justified manner to protect themselves and / or those about them.

...

Now, have I rambled on enough?

I appreciate your insights. Thank you, JoeSparky.

Let me explore something a bit.

We ban DUI, or the actual operation of a vehicle (let's ignore for a moment where the law goes too far in defining a DUI as the owner sleeping off a buzz in the backseat), regardless of whether the driver is demonstrably doing something dangerous or not, on the premise that should he need his wits and reaction time at the next red light, he doesn't have them.

A gun in a holster is a bit like a car in the parking lot. If nobody touches it, nothing bad happens. A gun in hand is not exactly like a car in motion. The car in motion requires constant and careful control not to inflict serious property or bodily harm, while the gun in hand needs only not to be shot. Yet the analogy is useful, I think.

Might we consider on whether a gun in the hand of an intoxicated/impaired man in public is moving into the realm of endangering the public similar to how a drunk driver a car endangers the public?

If we were to include exceptions of some sort for justified self-defense use of the gun, and to give deference to what a man does in his own home as long as there isn't evidence of endangering others, it is certainly moving in the right direction from where we are. Is it a big enough step to be worth the effort?

Charles

 

[OC for ME]

Thanks for your thoughts.

Just a few corrections and counter thoughts.

I don't think seeing a person with a gun and a beer is RAS for anything. No law against drinking while armed in Utah. Stumbling about or otherwise looking impaired while armed would create RAS, IMO.

I think there is a difference between possession/carry and handling, and a difference between being in public and on your own land or in your own home. We should probably avoid conflating these different cases.

I would prefer if we could avoid the rhetoric of "eroding rights" in Utah law as I can demonstrate a 20+ year history of regaining and enlarging statutory respect for our RKBA. While no legislator is perfect, we've got a decent crop who are working to conservatively roll back bad laws while creating some needed, new good laws in this regard.

Thanks

Charles

Under the statute it appears that there could be RAS to check BAC even on private property. Just as a cop could check your BAC if he sees you having a beer while sitting in a car. Would any given cop do this depends on the circumstances but he certainly appears to have the authority to do so.

The statute makes no exception for public vs. private property, given this they could be treated equally under the law. The statute makes no distinction between carry/possession/handling, given this they could be treated equally under the law. Utah's statute ties the driving BAC premise with carry/possession/handling. This is the law that needs to be remedied.

No exception that I could find for lawful self defense.

What is the priority for Utah legislators regarding carry/possession/handling where intoxication is concerned? It appears to me that they have no interest in removing this prior restrain. It appears to me that they have a desire to expand this prior restraint.

If it is going too far to DUI a citizen for sleeping it off in the back seat, why is it not too far to have a BAC component to firearms carry/possession/handling regardless of location? Utah state legislators don't mind you having a drink while armed but they will certainly hold you to account for having what they believe is too much to drink. This qualifies as a erosion of our RKBA in my book.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4448946/

 

[utbagpiper]

Under the statute it appears that there could be RAS to check BAC even on private property. Just as a cop could check your BAC if he sees you having a beer while sitting in a car.

I believe you are mistaken. The analogy to an open container in a vehicle is not approprirate here because Utah, like many States, has a specific prohibition on open alcoholic containers in motor vehicles. No similar prohibition exists for having a drink while armed.

What is the priority for Utah legislators regarding carry/possession/handling where intoxication is concerned? It appears to me that they have no interest in removing this prior restrain. It appears to me that they have a desire to expand this prior restraint.

... This qualifies as a erosion of our RKBA in my book.

On what basis do you presume to say it appears there is not interest in removing prior restraint, OC for Me? Have you spoken with any our legislators? Have you seem them vote against a reasonably well crafted bill to correct this problem?

I appreciate your insights. But to be blunt, I think you take a needlessly negative and confrontational approach on these matters.

There is no "erosion of rights" in Utah, and certainly no intentional or deliberate erosion of RKBA the last 20 years in Utah. None of the sponsors or major supporters of the DUI bill evidenced any desire to erode RKBA. In fact, their desire is right in line with our desires: to enhance personal safety. I carry a gun to enhance my personal safety. I'm also aware that reducing DUI might well do as much or more to reduce my odds of a serious injury or death as does carrying my gun.

To be honest, the issue of carrying while intoxicated wasn't on anyone's RADAR including any of the pro-RKBA groups active in the State, until this new DUI BAC limit bill was introduced and debated. Given totality of the statute, enforcement levels, etc, we simply have had much higher priorities. The lowering of BAC raised the issue and some of the same legislators who supported that measure, are actively working with us to correct the issue of not providing exceptions for self-defense or personal property or otherwise tying legal possession to a specific BAC.

Our next legislative session starts the first early next year. I won't be surprised if the final bill is less than perfect, but it will move us in the right direction.

Presuming ill intent where there is none, is not productive, even when dealing with legislators. Between your idea of perfect, and what we all know is really bad, there is a lot of room in the "better" or even "acceptable" realms of the spectrum. The perfect should not be made the enemy of the good enough.

Charles

 

[countryclubjoe]

The problem with any and all DMV laws or vehicle laws is simple, folks waive their rights while in their vehicle.. A persons 4th and 5th amendment rights seem to disappear.. The SCOTUS ruled that a motor vehicle is not an extension of a home and therefore does not receive the same protections under the Constitution.. Herein lies the problem.. My .02

Also how can someone be charged with a DUI while sleeping?.. Sleeping is not driving, last time I checked the dictionary. Also sleeping is not a crime, at least the last time I checked it wasn't.. If sleeping in ones vehicle on private property, I could understand being charged with trespassing but surely not DUI or sleeping while drunk.. Also does sleeping in ones vehicle give the over zealous leo, RAS to awake our sleeper and insist on some sobriety test/blood test etc?

Most vehicle statutes/laws are in my opinion unconstitutional..

My .02
Regards
CCJ

 

[JoeSparky]

The problem with any and all DMV laws or vehicle laws is simple, folks waive their rights while in their vehicle.. A persons 4th and 5th amendment rights seem to disappear.. The SCOTUS ruled that a motor vehicle is not an extension of a home and therefore does not receive the same protections under the Constitution.. Herein lies the problem.. My .02

Also how can someone be charged with a DUI while sleeping?.. Sleeping is not driving, last time I checked the dictionary. Also sleeping is not a crime, at least the last time I checked it wasn't.. If sleeping in ones vehicle on private property, I could understand being charged with trespassing but surely not DUI or sleeping while drunk.. Also does sleeping in ones vehicle give the over zealous leo, RAS to awake our sleeper and insist on some sobriety test/blood test etc?

Most vehicle statutes/laws are in my opinion unconstitutional..

My .02
Regards
CCJ

Utah's law is written as "operating" or "in controll of" for DUI.

 

[countryclubjoe]

Utah's law is written as "operating" or "in controll of" for DUI.

Indeed, when one is sleeping, one is not a threat to highway safety or public safety, nor is one operating.. One is sleeping, therefore unless falling asleep while driving, our sleepy citizen is harming no one.. No ones safety is at issue, nor is anyone being deprived of their rights or safety simply due in part to a citizen sleeping in his/her vehicle..

Over the road truckers, practice sleeping in their trucks often, I have yet to see where a "trucker" is charged with a DUI while sleeping in his /her truck..

Charles, in your great state, what is a more horrific, " Polygamy" or sleeping in ones vehicle?..

Interesting debate.

Regards
CCJ