Guns & Booze in Alaska

Sebastian recently wrote a post about guns and alcohol, and I received a comment over the holidays. DW and I also had some talks about the issue, so that has motivated me to write this post.

THE LAW

Alaska state law mentions firearms and intoxication in a few contexts:

• Misconduct Involving Weapons (MIW) V (Class B Misdemeanor): "Knowingly possesses a loaded firearm on the person in any place where intoxicating liquor is sold for consumption on the premises." It is an affirmative defense if (1) the firearm is concealed and (2) the place is a restaurant and the defendant didn't drink there. The weapon is only considered loaded if (1) there is a round in the chamber or (2) there is a loaded magazine/cylinder in the firearm (even if no round is chambered).
  
• MIW IV (Class A Misdemeanor): "Possesses on the person, or in the interior of a vehicle in which the person is present, a firearm when the person's physical or mental condition is impaired as a result of the introduction of an intoxicating liquor or a controlled substance into the person's body..."
• MIW III (Class C Felony): "knowingly sells or transfers a firearm to another whose physical or mental condition is substantially impaired as a result of the introduction of an intoxicating liquor or controlled substance into that other person's body;"
• MIW III (Class C Felony): "violates AS 11.46.320 (Criminal Trespass) and, during the violation, possesses on the person a firearm when the person's physical or mental condition is impaired as a result of the introduction of an intoxicating liquor or controlled substance into the person's body;"

Note that MIW II and MIW I come into play if drugs (controlled substances) are involved with felony charges associated with them. I don't intend to write about illegal drug users here. The only time your average citizen could potentially get wrapped up in the relevant drug statutes that I can see is if you possessed"with reckless disregard" some prescription painkillers within 500 feet of a school. So I think it is fair to focus primarily on alcohol for the remainder of the discussion.

WHAT IS "INTOXICATED?"

The next question is, "what is intoxicated?"AS 11.81.900, "intoxicated means intoxicated from the use of a drug or alcohol." I seem to recall something about not using the word you're trying to define in the definition, but oh well.

A more precise definition can be found in the DUI statute, which is in an entirely different title. That statute basically establishes a 0.08 limit, with increasing penalties as the detected limit goes up. Because it is in a different title, that definition doesn't apply to our weapons cases. Morever, I believe that the DUI statute allows you to be charged with DUI even if your BAC is below 0.08 if you are "under the influence" which is up to the discretion of the arresting officer.

We next turn to state law. The Alaska Law Review published a note on the subject (PDF warning), but it primarily focuses on the drug-firearm nexus. Still, for those purposes, the Alaska Supreme Court has established a similar standard to the feds which is actually a higher bar than some states. The Courts have held that there must be a nexus for the MIW statutes to come into play: for example, if someone violates a drug law, if they have a loaded firearm in another location, then unless it somehow emboldened them, then MIW isn't a factor. The court pointed out that to rule otherwise would basically drastically increase drug sentences for anyone who happened to be a gun owner as well. The court laid out the following factors as some important consideration (non exhaustive) for establishing the nexus:

(1) the type of drug activity conducted; (2) the accessibility of the firearm; (3) the type of firearm; (4) whether the firearm was stolen; (5) the status of the defendant’s possession (legitimate or illegal); (6) whether the firearm was loaded; (7) the proximity of the firearm to the drugs or drug profits; and (8) the time and circumstances under which the gun was found

The Alaska state courts have effectively tied MIW statutes for drugs to Federal Section 924 criteria, which currently use a "in furtherance of" test. That is, possession of the firearm must somehow further the drug activity (which is a loose, elastic standard informed by the factors above).

So, while there is some case law on the drug side, there is precious little on the alcohol side. Sure, there are lots of DUI cases, but I could not find a single case discussing Misconduct Involving Weapons. That is probably because MIW is usually charged when the person is obviously highly intoxicated, or already committed some other sort of crime. Contrary to what our opponents might think, this law unfortunately doesn't prevent much crime; it is useful as a sentencing enhancement after the fact, however.

So, for the purposes of MIW, what counts as the limit? I would say that you are intoxicated for purposes of MIW if (1) you have had anything alcoholic in any quantity and (2) a police officer thinks you are. If there is a "nexus" between your alcohol and the firearm then that may be a factor as well; for example, illegal drinking in a dry village with a firearm probably means you're screwed. Over 0.08 would certainly fit most people's definition of intoxicated as well; I wouldn't be surprised for an arresting officer to pull out the breathalyzer. You don't have to take the test but refusal means revocation of driving privileges and can even be a crime up here due to our tough DUI laws.

To add to the confusion, one of the MIW statutes (involving transfer) brings into play, "substantially impaired." That is not defined at all in either case law or title 11.

IS IT A GOOD IDEA?

First off, handling firearms while drunk is not safe or smart.

Legally, being intoxicated does not excuse you from criminal actions in Alaska (or most any other place, I'd imagine). Our definitions for "knowingly" and "recklessly" specifically state that the a "reasonable person" must consider what the accused should have known had they been sober. The only thing being drunk can get you out of is possibly "intent." For example, murder 1 generally requires you to kill someone with the intent to do so. If you shot someone while totally boozed out of your mind, your lawyer may be able to get it bumped down to Murder 2, which sets a lower bar of "knowingly" (which is not excused by intoxication). Still, I wouldn't say that moving a charge down from Murder 1 to Murder 2 is really a significant improvement.

If you do have to use your weapon in self-defense, then if you were drinking, it will certainly shed an unpleasant glare on your claim of justifiable homicide. It will also open up the door to civil liability.

Tactically, being under the influence will obviously degrade response times, fine motor skills, judgment, and sensory perception. All of those are bad for survival in a gun fight.

So, no, it isn't really a good idea.

MY BOTTOM LINE

Given all that, this is where I come down on firearms and drinking and such.

• I don't really go boozing out in public too much. However, I do believe that a great steak deserves a glass of red wine, and that a great dessert deserves a glass of port. If we plan on drinking at dinner, we usually have the DD (who is not drinking) carry. If the plan changes and we each decide to have a glass of wine (I -- and most other adults -- can still safely and legally drive home after a glass of wine with a steak dinner, after all), then the only legal answer is to go to the bathroom and clear the sidearm so that it is no longer "loaded" or duck out to the car and secure it.
  
• Don't drink if you plan on having to use the firearm. I have zero problem with cracking open a few cold ones at the end of a day of hunting or camping. DW and I often bring a bottle of wine out on camping trips. We also leave our firearms accessible and loaded because of the bear threat. However, we certainly don't plan on doing any more hunting that day. Other than a bear poking its face into my tent I have no plans on using that firearm.
  
  On the other hand, I don't think it would be smart to have a drink then go hunting. First off there are ethical concerns (will you take a sound shot with good judgment?). Second, it opens the door to significant legal problems if anything goes wrong. Say you in good faith accidentally shoot an animal of the wrong sex or something. You don't want to be put in the position of having to say to a fish and game officer, "Well, gee, yes, I had a drink earlier, but I don't think I was impaired when I shot that ram that wasn't quite a full curl..."
  
  Because any self defense gun for use against people might be used at any time (that's the idea, right?) I don't think you should drink anytime when carrying a self defense firearm. If you do, then I would definitely have some "escalation of force" measures in mind (like, pepper spray to use first). A bear that you shot after drinking a glass of wine won't sue you. A rapist or robber might.
• Don't be a jerk or push the envelope. I carry on posted private property where allowed by law up here like the 5th Street Mall. If I ever get asked to leave, I will. However, if you want to push the envelope like that, don't do it after you've had even a single drink. It opens the door to felony charges, for one thing.
  

SOME CHANGES TO ALASKA LAW

I think that the MIW laws need some changes. First off, "intoxicated" should have the same meaning as in the DUI statutes (0.08), or should be otherwise defined (0.04?). I don't think it is fair to police or citizens when the law is exceedingly vague. Even if 0.08 -- the limit to drive, mind you -- is too lax, then 0.04 should be fine. After all, commercial airline pilots are held to the 0.04 standard. 0.01 is too low because even just using mouthwash or a dose of cough syrup can push you over the limit.

Next, I think that MIW IV should have an affirmative defense that allows you to possess a firearm in your own home in self defense even if intoxicated. If you are at home, and you have to use a firearm defensively, then the fact that you had a six pack the night before shouldn't necessarily criminalize that action. People shouldn't be afraid to contact law enforcement to report crimes like attempted robbery or attempted rape because they are afraid that they'll be charged themselves. Making it an affirmative defense keeps this intentional "loophole" from being abused by druggies or alcoholics.

Additionally, I think that MIW V, "bar carry" prohibition, needs to be just be eliminated. It is asinine that if I go to the Moose's Tooth (a popular pizza pub), we can sit in the general seating area and be fine, but if we grab one of the "first come first serve" tables in the bar area to avoid a 2 hour wait I just violated the law even if I have nothing to drink. Likewise, it is silly that designated drivers can't carry a firearm even though they are going to drive a car. I think you could safely scrap the whole law altogether. Each bar can post its own policy. Most of the bars and nightclubs where this will probably cause problems already have security and can ask patrons who want to bring in firearms to leave. If they don't, then they just committed criminal trespass, which may even be elevated to a felony. If eliminating the law altogether doesn't fly, then the affirmative defense should be changed to an actual exception and it should apply to any establishment.

Eliminating the bar carry prohibition also has the benefit fo streamlining the law. For example, right now, it is illegal for me to have a glass of wine with my steak while carrying a loaded firearm. However, I could hand the gun to my wife, drink a glass of wine, then strap my gun back on as soon as I left the restaurant. Or, I could have two drinks before leaving home! It should not be legal to possess a firearm in public if over 0.08 (or 0.04), period. It shouldn't matter whether you drank at the restaurant or at home. This change is probably the most controversial, but frankly, I don't think it will really affect public safety negatively at all.