Ccw In Bars Or Liquor Stores

[bellavite1]

I remember reading something about being illegal to carry concealed in Jefferson Co in any business that sells liquor.
Could not find any info.
Is there any truth?
Where else in Colorado would this be an issue?

[Bailey Guns]

No truth to that at all. Unless the property owner discovers you're armed and asks you to leave...which would be the case for carry on any private property.

As a matter of fact, it's legal to carry or be in possession of a firearm even while drinking alcoholic beverages. It only becomes illegal if you consume enough alcohol to become intoxicated.

[275RLTW]

Check that....CRS 18-12-106 (d)

(1) A person commits a class 2 misdemeanor if:
(a) He knowingly and unlawfully aims a firearm at another person; or
(b) Recklessly or with criminal negligence he discharges a firearm or shoots a bow and arrow; or
(c) He knowingly sets a loaded gun, trap, or device designed to cause an explosion upon being tripped or approached, and leaves it unattended by a competent person immediately present; or
(d) The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or of a controlled substance, as defined in section 12-22-303 (http://www.michie.com/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=12-22-303&sid=73c12f07.334cadc6.0.0#JD_12-22-303) (7), C.R.S. Possession of a permit issued under section 18-12-105.1 (http://www.michie.com/colorado/lpext.dll?f=FifLink&t=document-frame.htm&l=jump&iid=COCODE&d=18-12-105.1&sid=73c12f07.334cadc6.0.0#JD_18-12-1051), as it existed prior to its repeal, or possession of a permit or a temporary emergency permit issued pursuant to part 2 of this article is no defense to a violation of this subsection (1).

[Irving]

Depends what constitutes "under the influence." It is probably .08. There are some places (states) where the limit for having a gun was .1 and the driving limit was .08. The person who told the story mentioned it was years ago though, so that may still not be the case.


Also, when it comes to states that do have laws stating you can't carry around alcohol, I believe it is in establishments that serve alcohol, not just sell it.

[275RLTW]

Currently in Colorado it is "under the influence" which is ANY alcohol. Not .08 like driving, any alcohol= no carrying. Just confirmed by SO.

[Irving]

There has to be a cut off, just like with driving.

Also, if you need to use your CCW, then a class 2 misdemeanor isn't really going to be your biggest worry. Thanks for posting the law though, it's definitely important for people to know and take into consideration .

[275RLTW]

I dislike the cutoff line as much as everyone else. Can't even have a drink with dinner. Remember, according to politicains, guns are more dangerous than cars even though more people are killed by cars than guns each year. (guess that's why I'm not a politician: I use common sense)

[Bailey Guns]

Currently in Colorado it is "under the influence" which is ANY alcohol. Not .08 like driving, any alcohol= no carrying. Just confirmed by SO.

Here we go again.

[275RLTW]

Here we go again.


Is there a problem with the facts I presented? If so, please notify me in a way that someone who was an officer for 14 years would. If you want to start a pissing contest, go elsewhere.

[Bailey Guns]

Is there a problem with the facts I presented? If so, please notify me in a way that someone who was an officer for 14 years would. If you want to start a pissing contest, go elsewhere.

Yes.

Read my first post in this thread.

I'll piss anywhere I please.

[Bailey Guns]

It's .05 BAC when driving becomes illegal. So I'd say that's a good place to start when talking about carrying/drinking. And I never said carrying/drinking were a good idea, BTW.

I'm curious...if you were a police officer and saw someone in possession of a firearm (assuming they're 21 and legal to possess firearms) and saw them take a sip of beer, what would you charge them with if that's illegal?

A person is "under the influence" or "intoxicated" when they've introduced enough of a substance (intoxicating liquor or drugs or both) into their body to the point their decision making process and physical abilities are impaired from normal.

[Fentonite]

I never imagined I'd say this, but I agree with coloccw on this one. The sheriff who signed my CCW permit, and employed me for quite some time, made it clear to his permit-holders as well as his deputies that any alcohol consitituted a violation. He would file charges, the prosecuter would prosecute, and the court would convict. I imagine that different jurisdictions may interpret this differently, but in the 7th Judicial District, that is how it worked.

Remember that the blood or breath levels only constitute prima fascia eividence regarding the "Per Se" portion of the statute. A driver can be convicted without blood or breath evidence, if it is shown that he is incapable either mentally or physically, or both, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. The blood levels make proving this easier, but are not needed. In fact, a person can meet the legal criteria for DUI conviction, and be under the per se "legal" limit.

On that note, I'm gonna have a marg.[Beer]

[kidicarus13]

The sheriff who signed my CCW permit, and employed me for quite some time, made it clear to his permit-holders as well as his deputies that any alcohol consitituted a violation. He would file charges, the prosecuter would prosecute, and the court would convict.

A Sheriff who can predict what 12 people will decide... now that's awesome!

[Fentonite]

No, he wasn't predicting. I said the court would convict, because I saw it happen. Just a judge - no jury in that case.

[kidicarus13]

I C, makes sense.

[Bailey Guns]

I'd like to know the particulars of that case. What was the charge? What was the evidence? What did the defendant do that led the arresting officer and the judge to decide this person's mental and physical faculties were impaired (ie: under the influence)?

Sorry...I've never seen or heard of someone being charged with Prohibited Use for consuming "ANY" amount of alcohol. That's just ridiculous. If they're not intoxicated and they're not committing some other offense it's not illegal.

Even the FAQ page on RMGO says persons may consume alcohol while carrying if they don't become intoxicated with the caveat they have not seen that challenged before.

Here it is from an attorney who is very familiar with firearms laws in the state. His name is Anthony "Tony" Fabian and he's the President of the Colorado State Shooting Association. This is from the Legal QA section of the CSSA website (www.cssa.org (http://www.cssa.org)):


Q: I recently was issued a concealed weapons permit, and I was wondering if there is any law regarding the use of alcohol and the carrying of a concealed weapon? Having read through the "shall issue" law more than once I know there is no reference to this, and I am concerned that if I go out to dinner and consume a beer, I may be braking the law and jeopardizing my permit? Should it be safe to assume that other laws pertaining to the use of alcohol and deadly weapons, such as a motor vehicle, may apply? I know that above all else common sense should prevail, however I think some laws go beyond what is reasonable and proper.



Thank you for your input and thoughts.



Mike in Golden



A: Dear Mike--



It is a crime (class two misdemeanor) to possess a firearm while intoxicated. A



Although not clearly defined, most courts have held that "intoxicated" means about the same as "under the influence," which means that your mental and physical abilities are substantially impaired by the consumption of alcohol (or any other drug for that matter). It is not illegal to merely possess or consume alcohol while in possession of a firearm, concealed or not, provided you are not drunk.



Having established the above, I personally believe it is a very bad idea to consume alcohol when in possession of a firearm, period. I make it a personal rule never to drink when I am carrying, regardless of the circumstances. Studies show that consumption of more than one alcoholic beverage over time, even if you do not become intoxicated, adversely affects your judgment, reactions/reflexes and motor skills. In light of that info, there is really no reason why you should drink at all if you are in an environment where you think you may need to defend yourself with a firearm. From a purely legal standpoint, should the need arise to use your firearm, your legal grounds/justification could be seriously affected if there is evidence you had been drinking.



Firearms instructors and shooting ranges universally ban alcohol from their shooting activities/premises--with good reason. There is absolutely nothing wrong with enjoying a fine adult beverage AFTER concluding an afternoon of shooting fun once the guns have been put safely away. Guns and alcohol do not mix, and it is a very good idea to always avoid combining the two.



Tony

[Fentonite]

As I recall (it's been quite a while): Bartender calls cops for a disorderly/boisterous patron. Bar patron then leaves and is stopped driving away from the bar. He's CCW (never brandished it or anything). It's clear he's had a couple beers, and is a jerk to the deputy, but isn't a clear DUI. He gets arrested for Disorderly and Prohibited Use (CCW while intox). Disorderly charge is dropped (I don't remember why), Prohibitted Use is not. The judge finds him guilty for CCW while intox. He gets something light - I think time served (overnight), a fine, and some community service.

Granted, with a real attorney, he might have gotten everything dismissed. Might not have gotten arrested if he hadn't been a prick. Some DA's may not have filed it. Some courts may not have heard it. I'm not saying that this is what you'll find everywhere, just one case that I saw (not mine though - wouldn't have filed it). It surely doesn't qualify as a universal gospel.

I don't disagree with you regarding how things should be. In fact, I agree with Tony's letter, but I've seen at least one court that did not. I absolutely think that we're setting ourselves up for trouble and possible arrest if we drink while carrying, and then, (yes, contrary to the constitution) it's on us to prove we weren't intoxicated (whatever "intoxicated" means to the court you're standing in). Hell, we can be arrested for legally CCW, and our permit is an affirmative defense we must present to get the charge dropped. Again, not how things should be, but reality none the less.

My inclination is to never carry while drinking, for many reasons. While the RMGO site has lots of good info, I don't think any court will accept their FAQ page as case law. Likewise, my opinions are worth exactly what you paid for 'em.

[Bailey Guns]

Fentonite, in your scenario it sounds like a very good case can be made for the guy being intoxicated, or at a minimum he was impaired (over the .05 presumptive limit). So I see no problem with that scenario as you've outlined it. I'd argue that the average person who consumes two alcoholic beverages in an hour is going to be very close to, if not, impaired. And with the type of behavior you described I'd say this person probably was impaired and having a firearm in his possession rose to the level of a crime. It's unfortunate in that case the deputy didn't require him to submit to roadsides and a breath/blood test...he was probably DUI.

But that's not what the original question was. Can a person carry a firearm into a liquor store or bar in Jefferson County? The answer is "Yes".

I made the assertion that it was, in fact, legal to carry into a bar or liquor store provided the owner didn't care. There is no state statute that prohibits that in Colorado.

coloccw then made the assertion that consumption of "ANY" amount of alcohol while carrrying was illegal and wrongly cited 18-12-106...which clearly states the person must be under the influence of intoxicating liquor or drugs before it becomes an offense.

While I've already stated I don't think it's a good idea to drink while packing, it's not necessarily illegal. But, if you don't believe an attorney, no need to believe me.

[Fentonite]

It's unfortunate in that case the deputy didn't require him to submit to roadsides and a breath/blood test...he was probably DUI.
He passed roadsides, so the deputy didn't feel he had PC to arrest for DUI. Not drunk enough for DUI, but intoxicated enough for Prohibited Use (at least in the entirity of that set of circumstances).


But that's not what the original question was. Can a person carry a firearm into a liquor store or bar in Jefferson County? The answer is "Yes".
Agreed.


I made the assertion that it was, in fact, legal to carry into a bar or liquor store provided the owner didn't care. There is no state statute that prohibits that in Colorado.
You are, again, correct.


coloccw then made the assertion that consumption of "ANY" amount of alcohol while carrrying was illegal and wrongly cited 18-12-106...which clearly states the person must be under the influence of intoxicating liquor or drugs before it becomes an offense.
After reflection, I also agree with this statement (see? I'm not a know-it-all with an immealleable outlook,... (not referring to anyone specific here, but I'm sure someone comes to mind)). I agree that the law is written, and should be interpretted, as you have summarized. My statement was based on the experience that, since there are (or at least were) those in positions of authority who do not see it that way, and that since the alcohol levels prescribed for driving do not statutorily apply to firearm possession, one could find himself in trouble, justified or not. So, I guess I don't agree with what coloccw stated, but my view and his would have the same "sobering" effect. Scary.

Cheers.

[Irving]

I know someone who was busted for carrying concealed while drunk without a permit at all and if I remember correctly, all charges were dropped but the carrying without a permit part. I'd really like to get his gun back from the police but I don't know how to go about it. If a crime was committed and they needed it for evidence, I'd understand, but that is not the case. The police shouldn't be able to steal your possessions for a misdemeanor. You get your car back after a DUI. If anyone who works for Jeffco has any insight and would like to PM me about it, I'd really appreciate it.

[Bailey Guns]

If he was convicted of (or plead guilty to) illegally carrying a concealed weapon he may not get his gun back:


18-12-110. Forfeiture of firearms.

Upon the motion of the prosecuting attorney after the conviction of a defendant, the court may order the forfeiture of any firearms which were used by the defendant during the course of the criminal episode which gave rise to said conviction as an element of sentencing or as a condition of probation or of a deferred sentence. Firearms forfeited under this section shall be disposed of pursuant to section 16-13-311, C.R.S.

It's been my experience that most people who commit an offense involving a gun don't get it back based on the above statute. If everything else was dropped except the illegally carrying charge, sounds like he entered into a plea agreement with the DA. Just speculation, though.

[gnihcraes]

Ok, so I must ask/say this, if carrying and or drinking, choose one or the other, doesn't this eliminate the problem of who is right or wrong?

[Irving]

Oh I'm sure that's the issue and you posting that saves me some phone calls. That law should be stricken from the books IMO. At least now counties have been auctioning the guns instead of just destroying them. Oh well.

[Zundfolge]

The lawyer that lectured at my CCW class said that the way the law is written "under the influence" is up to the discretion of the arresting officer and then the district attorney.

There have been people convicted of DUI with a BAL below the legal limit and people never charged with BAL over the legal limit based solely on the performance of the driver in the roadside sobriety testing, so its possible that under some circumstances a single drop of drink could get you convicted while in others you could walk with a .11 BAL.

[Fentonite]

Ok, so I must ask/say this, if carrying and or drinking, choose one or the other, doesn't this eliminate the problem of who is right or wrong?

You are wise, like a blind old Shaolin monk.

[Bailey Guns]

Ok, so I must ask/say this, if carrying and or drinking, choose one or the other, doesn't this eliminate the problem of who is right or wrong?

Most everyone in the discussion has already said it's not a good idea to drink while carrying/using guns.

But is there any need to spread misinformation? Personally, I don't have a problem with the law the way it's written as it leaves the responsibility to act appropriately on the individual...where it should be. All you have to do is look at the CCW revocation stats to see that alcohol isn't a big problem for people with permits.

[275RLTW]

But is there any need to spread misinformation?

Please see your first post....refuted by C.R.S. and confirmed by Larimer, Weld, and Boulder county Sheriff's offices. Look at it this way, under the influence can be as little as 1 sip of alcohol but is determined by the officer, just as speeding is 1 mph over the limit but getting a ticket is at the discretion of the officer. Although not always enforced, any alcohol consumption while in posession of a firearm is illegal.

[Bailey Guns]

Sure...whatever.

[Irving]

It's probably already been at least hinted at, that the way you come into contact with the police is going to be the biggest factor in all of this.

Think of it like having marijuana on you. If you go through say....a dui check point with under an ounce of weed (in Denver) and you don't have any warrants, aren't drunk, and don't act like an ass; the officer might just tell you to drive safe and left you on your way.

But if you are a known gang banger and get caught carrying some weed in the middle of a raid or something; the officers are going to be more likely to toss any charges for possession of pot onto your charges to make your life a little worse. It all really depends on why you are encountering the police in the first place.

[newracer]

Consumption of alcohol while in possession of a firearm is not illegal.

Being under the influence of alcohol is.

AFAIK it has never been tested in court as what "under the influence" is in this case. We can assume it would be the same as "driving under the influence" but we really do not know.

Sheriff offices do not always know the law. The only way to know is for it to be tried in court.

ETA: Speeding 1 mph over the limit is not the same. There is a known and defined speed limit on every road. The limit of alcohol in this case is not defined.

[Irving]

That's why I was saying that there should be a cut off. Other states have, in the past, had an established limit of .10. Even if it is at the discretion of an officer, there has to be a minimum threshold where if you are below it, there just isn't any way that you can have charges pressed against you for breaking the law.

[cowboykjohnson]

That's why I was saying that there should be a cut off. Other states have, in the past, had an established limit of .10. Even if it is at the discretion of an officer, there has to be a minimum threshold where if you are below it, there just isn't any way that you can have charges pressed against you for breaking the law.
+1 I would like to be able to have a refreshing beverage at dinner... and not get intoxicated... with out worrying about getting to spend a night in the clink.

[newracer]

Sicne there is not a defined limit it is harder to prove you are "under the influence." Personally I would not worry about having a beer or glass of wine with a meal.

[Irving]

I had an officer tell me that if you were to get into a fight while carrying, and if you run into the police, if they find that you were carrying, you get charged for assault with a deadly weapon, even if no one knew you had a piece until the cops found out later. So even if you didn't draw it, just the fact that you HAD it gets you in trouble.


I'm honestly kind of surprised at this conversation on this board, as it borders on explaining to non-gun owners how you don't go looking for trouble when carrying. On the contrary, you are usually more careful to avoid trouble while carrying for these very reasons. Even though it hasn't been said yet, I assume that everyone here has the understanding an operates under the same assumptions that while you are carrying, you double your efforts to stay out of trouble.

[cowboykjohnson]

Sicne there is not a defined limit it is harder to prove you are "under the influence." Personally I would not worry about having a beer or glass of wine with a meal.
not with our lovely justice system, that just means they can start at .00000001 BAL and call you intoxicated if they feel you were not acting properly.

[newracer]

Being charged with something and convicted of it is totally different. The police can charge you with just about anything, what you get convicted of is another story.

[Irving]

So, should I throw away all my mouth wash right now then?

[cowboykjohnson]

I live in boulder county... I'm pretty sure I would be convicted just because it involves a firearm..

[cowboykjohnson]

So, should I throw away all my mouth wash right now then?
and your cough medicine

[kidicarus13]

I had an officer tell me that if you were to get into a fight while carrying, and if you run into the police, if they find that you were carrying, you get charged for assault with a deadly weapon, even if no one knew you had a piece until the cops found out later. So even if you didn't draw it, just the fact that you HAD it gets you in trouble.

That's the dumbest thing I've heard in a while.

[Irving]

I just had another thought. How does private property come into play with this? What if you're in your own house drinking and you have a situation. There isn't going to be an angry bar owner to want to press charges or anything. I can drive drunk all I want on my own land, can't you be drunk with guns as well?

[Bailey Guns]

Being charged with something and convicted of it is totally different. The police can charge you with just about anything, what you get convicted of is another story.

Exactly. And they're going to have to demonstrate, through evidence presented to the court, why they thought you were intoxicated or under the influence.

The evidence could be through testimony regarding your behavior, it could be the results from a blood/breath test, the fact you said you drank 12 beers...whatever. As an arresting officer you'd be bitch-slapped by your supervisor (and everyone else in your chain of command) and the DA if you turned in an arrest report that stated you arrested the defendant for "having a sip of alcohol while in possession of a firearm."

I'm simply amazed that some here believe a single "sip" of alcohol is enough to rise to the level of a crime because the sipper is in possession of a firearm.

[Bailey Guns]

I just had another thought. How does private property come into play with this? What if you're in your own house drinking and you have a situation. There isn't going to be an angry bar owner to want to press charges or anything. I can drive drunk all I want on my own land, can't you be drunk with guns as well?

Where you are doesn't matter (and by the way...DUI is enforceable anywhere...even on your own property). Private or public property...same, same.

[Bailey Guns]

That's the dumbest thing I've heard in a while.

+1. Not what Stuart said...what he was told.

[Irving]

How can you be charged for DUI when you aren't on public roads? In most cases, the police won't even write an accident report for an accident in a parking lot because it is on private property. Well, I guess it doesn't matter, because if you have enough property to be driving around on, then if you get into a wreck, you most likely aren't going to be calling the police anyway.

Also, I'm glad to hear that you can't be charged with assault with a deadly weapon just because you happened to have one on you. That's good news.

[cowboykjohnson]

How can you be charged for DUI when you aren't on public roads? In most cases, the police won't even write an accident report for an accident in a parking lot because it is on private property. Well, I guess it doesn't matter, because if you have enough property to be driving around on, then if you get into a wreck, you most likely aren't going to be calling the police anyway.
But if you wreck into a deer on your own property does it become a state or federal crime, since the animal is owned by the public in the state of colorado?

[Bitter Clinger]

So what about just drinking at home as stuart asked? There are times when i sit here with company and drin to at or above.08. I rarely (once a year or so) get "fall down drunk" but if i have nowhere to drive, i will frequently pound 'em during a race or football game. What if there is a situation where i need to use deadly force to protect my life? Personally, i can be at .08 and others dont realize im that far gone. Now, having said that, when the Jameson comes out, the guns go away. I rarley carry around the house any ways.[Beer]

[Bailey Guns]

How can you be charged for DUI when you aren't on public roads? In most cases, the police won't even write an accident report for an accident in a parking lot because it is on private property. Well, I guess it doesn't matter, because if you have enough property to be driving around on, then if you get into a wreck, you most likely aren't going to be calling the police anyway.

Also, I'm glad to hear that you can't be charged with assault with a deadly weapon just because you happened to have one on you. That's good news.

If memory serves there are 7 traffic offenses that can be charged on private property (maybe a current LEO can correct me): DUI, DWAI, Careless, Reckless, Unsafe Backing...and I can't remember the other two. That's under the state traffic code. Municipalities and other jurisdictions may have others (ie: parking in a fire lane, etc...).

[Irving]

That makes sense, as the police WILL come out if you crash hard enough in a parking lot to total a car or something.

[Bailey Guns]

So what about just drinking at home as stuart asked? There are times when i sit here with company and drin to at or above.08. I rarely (once a year or so) get "fall down drunk" but if i have nowhere to drive, i will frequently pound 'em during a race or football game. What if there is a situation where i need to use deadly force to protect my life? Personally, i can be at .08 and others dont realize im that far gone. Now, having said that, when the Jameson comes out, the guns go away. I rarley carry around the house any ways.[Beer]

Technically, it doesn't matter if you're at home. Possession (meaning basically that the firearm is under your direct control or easily can be) is still an offense if you're intoxicated.

Doesn't mean you still can't defend yourself with a gun if necessary...however, it will complicate your case and your judgment and actions will be scrutinized...probably pretty severely if you're over the .08 limit.

But if my life was in danger the last thing I'd worry about was being charged with prohibited use.

[Irving]

Especially for a misdemeanor, which I keep have to remind myself is what we are discussing here.

[newracer]

The DUI statutes only refer to operating a motor vehicle, it does not state it has to be on a road. So therefor yes you could get a DUI while driving on private property.

As far as drinking and then having to shoot some one in yuor home, to me it is kind of a gray area. The statute states:


(3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
So if you are immune from criminal prosecution I would assume that means for all statutes including prohibited use of a firearm.

[cowboykjohnson]

If memory serves there are 7 traffic offenses that can be charged on private property (maybe a current LEO can correct me): DUI, DWAI, Careless, Reckless, Unsafe Backing...and I can't remember the other two. That's under the state traffic code. Municipalities and other jurisdictions may have others (ie: parking in a fire lane, etc...).
That sucks... ruined my idea for a drunken backyard motorcycle racing league[Tooth]

[Irving]

I was going to say that ruined my plans of defending my home by flattening a perp with my car. Oh well...

[cowboykjohnson]

I see we both have a sic misunderstood humor [Tooth]

[275RLTW]

I understood it....why stop with the car when UHAUL can deliver a truck? A steamroller could be rented if the PD is busy that day.

[TFOGGER]

So, should I throw away all my mouth wash right now then?

and any fruit that's been in your refrigerator for more than 48 hours...

[Mtn.man]

That makes sense, as the police WILL come out if you crash hard enough in a parking lot to total a car or something.


Like Tiger Woods...[Beer]

[TFOGGER]

Ok...according to CRS 42-4-1301 (DUI Law) you are considered to be "alcohol free" anytime your BAC is less than .02 %. This is a VERY low percentage, so in theory, you could be charged under 18-12-104(if you exceed .02 BAC. The law clearly delineates the difference between "ability impaired" versus "under the influence", and legal definitions tend to be fairly consistent in such things.

(f) "Driving under the influence" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

(g) "Driving while ability impaired" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

[gnihcraes]

not trying to start anything... but it still seems like everyone here is fighting to justify the "beer" and not the "gun"...

[Zundfolge]

not trying to start anything... but it still seems like everyone here is fighting to justify the "beer" and not the "gun"...

The debate is about the finer points of the law, not whether drinking and packing are a good idea.

[gnihcraes]

but everyone seems to be justifying the "beer" in the law...

[KevDen2005]

As a cop I have to say I also disagree with it everyone knows that a beer with dinner is not going to put you under the influence or make you intoxicated, but it is true, law is no alcohol at all while carrying...

[Bailey Guns]

As a cop I have to say I also disagree with it everyone knows that a beer with dinner is not going to put you under the influence or make you intoxicated, but it is true, law is no alcohol at all while carrying...

And you can cite a statute for that?

Let me ask another hypothetical question: You're a police officer. You see someone in possession of a firearm. You see them take a drink (not an entire drink...just a sip) of an alcoholic beverage. One sip. And in this hypothetical (just to make it easy) you know they've haven't consumed any other alcohol. Since, according to you and maybe a few others here, the "law is no alcohol at all while carrying", you decide to write them a summons for being in possession of a firearm and consuming alcohol. What statute are you going to charge them with violating?

[TFOGGER]

That's why I cited the above code sections. "Under the influence" is a precise legal definition, albeit with considerable latitude for interpretation by the officer on the scene.
" under the influence" means driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle."

So, an officer can decide you are "under the influence" without any specific BAC, as long as there is reasonable probable cause to feel you meet the criteria above. At that point, he would be able to disarm you, arrest you, and generally make your life miserable. If there were insufficient physical evidence, the DA might decline to pursue the charges.

I personally never carry when I might be drinking, and decline to drink when I am carrying. That being said....


[Beer]

[Bailey Guns]

As far as I know, "under the influence" is not defined as a separate and distinct Colorado statute. "Intoxication" is defined:


18-1-804. Intoxication.


(4) "Intoxication", as used in this section means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.

I don't know for sure in a legal sense but I believe the terms are generally used interchangeably. I'm really curious, based on that definition, how an officer would articulate probable cause based on consumption of a very small amount of alcohol (ie: a single sip).

I also believe a person may have a pretty good civil case against an officer/dept based on an arrest for such a minor amount if no evidence could be demonstrated that the person's mental/physical abilities were adversely affected by the consumption of such a small amount.

Based on the definition in your above post, TFOGGER, I can't imagine how, with one sip of an alcoholic beverage, an officer could have probable cause to make an arrest. A very small amount of alcohol is not going to cause someone to become "substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle." Not only that, but if an officer did observe someone consume a small amount of alcohol (assuming the person had not consumed any previously) it would take a substantial amount of time for the alcohol to be absorbed into the bloodstream in order to affect the person's mental and physical abilities.

Now, I know I'm being nitpicky by continually referring to a single "sip" of an alcoholic beverage. But some people are saying "ANY" amount of alcohol consumed while carrying is illegal. I completely disagree with that notion. And so does one of the most knowledgeable gun-rights attorneys in the state.

[TFOGGER]

I agree, a single sip(maybe an entire beer) is not likely to get you cited, as it would fail to meet the definition. But as we have seen, some officers are not familiar with the law, so the latitude provided in the statute might still allow them to charge you and make your life miserable. You don't have to be at a certain BAC in order to be cited, you would merely have to exhibit behavior that could provide probable cause (combative, confused, lack of physical control). That doesn't mean that the charges are sustainable, just that you can be charged and made to defend against the charges. As you well know, the job of the police is not to determine guilt or innocence, merely to refer charges to the courts.

It sucks that we are held to an higher standard as CCW holders, but that is the reality of the situation.

Where alcohol and CCW would really get sticky is if you had a beer with dinner, and then were forced to use your firearm to defend yourself. It would give a prosecuting attorney a whole new angle with which to attack your defense.

[Mtn.man]

I agree, a single sip(maybe an entire beer) is not likely to get you cited, as it would fail to meet the definition. But as we have seen, some officers are not familiar with the law, so the latitude provided in the statute might still allow them to charge you and make your life miserable. You don't have to be at a certain BAC in order to be cited, you would merely have to exhibit behavior that could provide probable cause (combative, confused, lack of physical control). That doesn't mean that the charges are sustainable, just that you can be charged and made to defend against the charges. As you well know, the job of the police is not to determine guilt or innocence, merely to refer charges to the courts.

It sucks that we are held to an higher standard as CCW holders, but that is the reality of the situation.

Where alcohol and CCW would really get sticky is if you had a beer with dinner, and then were forced to use your firearm to defend yourself. It would give a prosecuting attorney a whole new angle with which to attack your defense.


But then you would have to register "intoxicated" on a blood alcohol test or the defense would make the state look stupid.

[brian1277]

so first off i am not LE and Bailey Guns is 100% correct on this. he has stated all FACTS!!

i have some friends that are LE. i have had this discussion with them.

one of them is a sergeant and one of his guys (LE) was out in fort collins and had a beer in hand. he was off duty and had his weapon on him.

someone who worked at the place they were at had seen his weapon and called fort collins PD. two officers showed up and took his weapon, then they wanted to arrest him. he told them they needed to call the supervisor on duty and get him down there right away. the supervisor told the officers who took the call to give him his weapon back and apologize, then apologize some more and that they were in the wrong to try and arrest him. he was not under the influence and did not even drink half a beer.

that is the facts. it is funny that there is a large number of LE that do not know the law and just go by what they think is correct with out checking into it.

[Bailey Guns]

I agree, a single sip(maybe an entire beer) is not likely to get you cited, as it would fail to meet the definition. But as we have seen, some officers are not familiar with the law, so the latitude provided in the statute might still allow them to charge you and make your life miserable. You don't have to be at a certain BAC in order to be cited, you would merely have to exhibit behavior that could provide probable cause (combative, confused, lack of physical control). That doesn't mean that the charges are sustainable, just that you can be charged and made to defend against the charges. As you well know, the job of the police is not to determine guilt or innocence, merely to refer charges to the courts.

It sucks that we are held to an higher standard as CCW holders, but that is the reality of the situation.

Where alcohol and CCW would really get sticky is if you had a beer with dinner, and then were forced to use your firearm to defend yourself. It would give a prosecuting attorney a whole new angle with which to attack your defense.

And I agree with that with the added statement that, in and of itself, consuming alcohol while carrying is not illegal in Colorado. Only when intoxicated.

That's why the DUI laws have evolved over the years to where they are now. Because there was a lot of subjectivity that went into evaluating if someone was "under the influence". Now, it's pretty cut and dried and it almost entirely objective...not necessarily the officer's observations of someone but the evaluation of scientific evidence. Initially, it was a pain in the ass to get a DUI conviction. Now, it's almost a no-brainer (I made in excess of 850 DUI arrests from 1992 to late 2000...went to trial on 3! Lost one). It got to the point I could pretty accurately estimate a person's BAC level. That's also the reason there are (or were, anyway...I'm 9.5 years out of law enforcement) only 3 scientifically validated SFSTs (roadsides)...the walk and turn, 1 leg stand and horizontal gaze nystamus test.

It's also one of the main reasons there are more than one DUI charge...DWAI, DUI, DUI Per Se.

DWAI (.05) and DUI (.08) are based on presumptive evidence that a person with that much alcohol in their bloodstream is either impaired or under the influence. It's true one can be charged with DUI for having a BAC less than .08. I've personally got a conviction on a young lady who was only at a .02 but was literally falling down drunk. Other people may not show any outward evidence at all of having that much alcohol in their system. But it's pretty hard to fool the HGN test, even if the "pass" the other roadsides.

DUI Per Se (over .08) basically means the state is saying a person has an excessive amount of alcohol in their system and it is a misdemeanor offense to operate a motor vehicle with that much alcohol in their system, regardless of whether or not they exhibit any signs of intoxication (not the legal definition, but the jist of it). If someone is arrested with a BAC in excess of .08 they are charged with DUI and DUI Per Se.

If I were going to arrest someone for prohibited use I'd certainly make sure I had sufficient probable cause based on evidence I could articulate and validate.

Sorry for going so far off topic. [Rant2]

[Bailey Guns]

But then you would have to register "intoxicated" on a blood alcohol test or the defense would make the state look stupid.

Pretty much. Most agencies have a prodedure for doing what's called a "felony blood draw" where potentially serious crimes are involved.

If you just shot and killed someone, and there was any evidence you'd been drinking, you would be required to submit to several blood draws to determine your BAC. There are usually 3 draws...one right away and the others each 20 minutes from the previous one.

The criminal aspect of having alcohol in your system would be the easy part. Based on a blood draw you're either intoxicated or you're not.

The hard part would be in any subsequent civil trial. Even a small amount of alcohol in your system is going to give the other side's attorney plenty of ammunition against you.

[275RLTW]

And I agree with that with the added statement that, in and of itself, consuming alcohol while carrying is not illegal in Colorado. Only when intoxicated.

The statues clearly state "under the influence," not "intoxicated" as you continue to mention. We have read the laws pertaining to driving but remember that the lawmakers do not consider a vehicle to be a deadly weapon (despite the statistics) thus allowing greater allowance for BAC when driving. If, as you stated, that you arrested somone who was clearly "intoxicated" with a BAC of only .02, then how can the lawmakers justify allowing someone to carry a "deadly weapon" in that condition. They can't. That is why the statue is written that way. Under the influence varies from person to person (as you pointed out), therefore its definition is up to the determination of the arresting officer. In order to make our lives easier, we (or at least most of us) choose not to consume any alcohol while armed. You claim to be a Range Safety Officer, what is the rule for live fire? No alcohol in the 8 hours previous to the training, correct? That means zero alcohol, not "non-intoxicated." What would happen if, while you were an officer, you had a beer in the middle of your shift? I understand that LE is held to a higher standard than civilians but not when pertaining to firearms usage. Isn't the "reasonable man standard" established by Graham vs Connor the basis for use of force statues for CCW permit holders?
The statues clearly state "under the influence" which although nebulous in definition implies that any amount of alcohol can put you in this condition. As someone who carries every day, the phrase "better safe than sorry" is an understatement for us. Consuming any alcohol while armed is your decision but why take the chance? No beer is that tasty....

Side note: the HGN test is no longer valid as of 2007 due to inconsistencies with people with vision disabilities, previous TBIs, and in the administration of the test itself. The results of the HGN test may not be accepted in court as evidence.

[Bailey Guns]

The statues clearly state "under the influence," not "intoxicated" as you continue to mention.

No argument there. However, definitions are generally the same from one statute to the next. These terms are also frequently used interchangeably and I've also added that I didn't know if, in a legal sense, that was proper. However, if you read the statutory definitions of the two they are pretty much the same.


We have read the laws pertaining to driving but remember that the lawmakers do not consider a vehicle to be a deadly weapon (despite the statistics) thus allowing greater allowance for BAC when driving.

That's not true, either. A deadly weapon is any weapon, device, instrument, material or substance whether animate or inanimate, that can be used to cause death or serious bodily injury. The definition is very broad and could easily include an automobile.


If, as you stated, that you arrested somone who was clearly "intoxicated" with a BAC of only .02, then how can the lawmakers justify allowing someone to carry a "deadly weapon" in that condition. They can't. That is why the statue is written that way.

No argument there, either. But I also had solid evidence this person was "under the influence"...not that she'd had only a "sip" of alcohol as you profess is illegal. She was also only 16 which means it was illegal for her to have any amount - even a sip - of alcohol in her system.


Under the influence varies from person to person (as you pointed out), therefore its definition is up to the determination of the arresting officer.

Only to a point. Again...the officer has to have evidence based on a person's behavior and other potential factors they are "under the influence". You seem to be missing that point.


In order to make our lives easier, we (or at least most of us) choose not to consume any alcohol while armed.

Where did I ever argue that was not a prudent decision? Let me make it easy for you...I didn't.


You claim to be a Range Safety Officer, what is the rule for live fire? No alcohol in the 8 hours previous to the training, correct? That means zero alcohol, not "non-intoxicated."

Now you seem to be confusing range safety rules with what is legal or not legal. Are you trying to tell me that, no matter what a person's BAC or when they stopped consuming alcohol, after 8 hours there is never any alcohol remaining in their system?


What would happen if, while you were an officer, you had a beer in the middle of your shift? I understand that LE is held to a higher standard than civilians but not when pertaining to firearms usage.

Now you've gone from the rational back to the ridiculous. Do you suppose maybe legality isn't really the issue in this example but department policy and procedures might be? There's no statute I'm aware of that states a police officer can't consume alcohol on duty. But I'd be willing to bet that almost every dept policies and procedures manual will. Pretty much just like the vast majority of the rest of the working public probably is prohibited from drinking while on the clock.


Isn't the "reasonable man standard" established by Graham vs Connor the basis for use of force statues for CCW permit holders?

OK...but what does that have to do with this discussion?


The statues clearly state "under the influence" which although nebulous in definition implies that any amount of alcohol can put you in this condition. As someone who carries every day, the phrase "better safe than sorry" is an understatement for us. Consuming any alcohol while armed is your decision but why take the chance? No beer is that tasty....

I reject your assertion the definition implies any amount of alcohol. I believe it clearly implies enough alcohol to negatively affect your mental and physical capabilities. And again...you're assuming I've said it's OK. I never said that.


Side note: the HGN test is no longer valid as of 2007 due to inconsistencies with people with vision disabilities, previous TBIs, and in the administration of the test itself. The results of the HGN test may not be accepted in court as evidence.

Like I said...it's been 9.5 years. But you're right that it may be rejected by a court. Not will be rejected. The NHTSA states it must be performed according to certain standards and if it is, it's still valid and/or acceptable. There hasn't been a blanket dismissal of the HGN test as a valid test as far as I can tell. I may be wrong on that but that's what I've read.

[KevDen2005]

And you can cite a statute for that?

Let me ask another hypothetical question: You're a police officer. You see someone in possession of a firearm. You see them take a drink (not an entire drink...just a sip) of an alcoholic beverage. One sip. And in this hypothetical (just to make it easy) you know they've haven't consumed any other alcohol. Since, according to you and maybe a few others here, the "law is no alcohol at all while carrying", you decide to write them a summons for being in possession of a firearm and consuming alcohol. What statute are you going to charge them with violating?

You wanna call me out, well here you go...


18-12-106(1)(d)-Prohibited Use of Weapons. The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or controlled substances.

For the purpose of this statute intoxication is at the discretion of the officer if you are able to prove they are not able to have clear judgment and should not be carrying a firearm (confirmed by 18th Judicial District DA). So if you take a sip, HYPOTHETICALLY, it could be you are intoxicated...most likely not. Most likely if you consume a beer you will not get charged. I would just be really careful when it comes to beer and guns. As with my first post I guess I didn't clarify when I said you can't be intoxicated at all while carrying guns ( I used alcohol interchangeably) because we all know how easy it really is to get PC on. As a former LEO you are arresting on PC not what 12 people will decide later, that is a different degree of proof.

When you are looking at definitions for alcohol and intoxication looking under the DUI statute could be helpful but they are two different laws and going to be treated as such. You don't have to be a 0.08 BAC to be charged with DUI, which is 42-4-1301(1)(a), if your BAC is above 0.08 you will get charged with 42-4-1301(2)(a) as well as the first one. If you BAC is under 0.08 you will only get charged with the first one or DWAI at the officers discretion. If you consume any alcohol and we can prove that a person is substantially incapable of clear judgement (when used with vehicles) then they are DUI. DWAI is impaired to the SLIGHTEST degree.

Having said all that be careful when mixing any combination of statutes (for all the other posters out there).

Not saying I disagree with Bailey Guns, but I think we are on two different pages

[KevDen2005]

I forgot to mention that I would probably not cite the person that I apparently had enough time to witness one sip because I have more common sense than that, and most LEO's do, although the people on this site would sometimes think otherwise.

[bellavite1]

Ok guys,
this thing snowballed and got completely off track.
What I was asking when I started the thread was:is it illegal to carry concealed (whitout drinking) in a place that sells alcohol anywhere in Colorado?
The issue of drinking and carrying never crossed my mind.
If I am carrying it means that my mindset is on "possible trouble".
And in the event of trouble I want all the advantages I can get.
I will not drink because I want to be more alert than the others around me, quicker than the others around me, faster on target the the others around me.
That does not mean I am not going to take the wife out every now and then.
I will simply wait to get home before I have a drink.
The law has nothing to do with it.

[KevDen2005]

no

[Bailey Guns]

You wanna call me out, well here you go...


18-12-106(1)(d)-Prohibited Use of Weapons. The person has in his or her possession a firearm while the person is under the influence of intoxicating liquor or controlled substances.

For the purpose of this statute intoxication is at the discretion of the officer if you are able to prove they are not able to have clear judgment and should not be carrying a firearm (confirmed by 18th Judicial District DA). So if you take a sip, HYPOTHETICALLY, it could be you are intoxicated...most likely not. Most likely if you consume a beer you will not get charged. I would just be really careful when it comes to beer and guns. As with my first post I guess I didn't clarify when I said you can't be intoxicated at all while carrying guns ( I used alcohol interchangeably) because we all know how easy it really is to get PC on. As a former LEO you are arresting on PC not what 12 people will decide later, that is a different degree of proof.

When you are looking at definitions for alcohol and intoxication looking under the DUI statute could be helpful but they are two different laws and going to be treated as such. You don't have to be a 0.08 BAC to be charged with DUI, which is 42-4-1301(1)(a), if your BAC is above 0.08 you will get charged with 42-4-1301(2)(a) as well as the first one. If you BAC is under 0.08 you will only get charged with the first one or DWAI at the officers discretion. If you consume any alcohol and we can prove that a person is substantially incapable of clear judgement (when used with vehicles) then they are DUI. DWAI is impaired to the SLIGHTEST degree.

Having said all that be careful when mixing any combination of statutes (for all the other posters out there).

Not saying I disagree with Bailey Guns, but I think we are on two different pages

Wasn't meant to be "calling you out". And the prohibited use statute is the one we've been discussing for 8 pages now.

I'm just make one final statement because nothing is being said now that hasn't already been said here at least a couple of times.

The real issue, it seems, is what constitutes "under the influence". You and at least one other poster have stated "ANY" amount of alcohol consumption while in possession of a firearm is illegal and that "under the influence" is up to the discretion of the arresting officer.

1) I agree that officer discretion will be the deciding factor on when to make an arrest for prohibited use. No argument.

2) I also agree that drinking while carrying is not a good idea and I don't recommend it.

3) But a few posters have stated based on 18-12-106(1)(d) that consumption of "ANY" amount of alcohol while in possesion of a firearm is in and of itself, illegal. My assertion is that is not the case. It only rises to the level of a crime if the gun-toter becomes "under the influence". I think common sense will tell us someone is under the influence when they demonstrate an obvious behavior change...they have slurred speech, they can't stand/walk without stumbling, they have a difficult time articulating what they want to say, they have the odor of an alcoholic beverage on their breath, they've admitted to substantial consumption of alcohol, they're unreasonably argumentative or combative, generally uncooperative, etc...

4) I also contend that no officer in his/her right mind is going to arrest someone for drinking one sip of an alcoholic beverage while in possession of a firearm and then try to argue "under the influence". The reason is because that officer is then going to have to articulate what the probable cause was for the arrest. Just stating a person had one sip of an alcoholic beverage is not going to convince anyone that person was "under the influence". It's as if some of you are trying to say that one sip of alcohol causes a person to dramatically change their behavior. It takes more than that.

That's it for me on this worn out discussion.