Possession of or Discharging a Firearm While Under the Influence of Alcohol

Firearm Alcohol

A hard and fast rule is that guns and alcohol don’t mix. If you are in possession of or use a firearm in any way while under the influence of alcohol or any other controlled substance, there can be heavy penalties to pay. If someone is injured or dies because you were using a gun while under the influence, you are facing serious prison time. Just like with other firearm charges like carrying a concealed weapon, felon in possession of a firearm, and felony firearm, judges and prosecutors treat charges of possession of or discharging a firearm while under the influence of alcohol very seriously. Firearms can be dangerous under normal circumstances. Adding the element of alcohol impedes a person’s judgment which increases the chance of something going wrong or someone being hurt.

Elements of the Offense

MCL 750.237 prohibits a person from possessing, using in any manner, having under control, or discharging a firearm under any of the following circumstances:

  • Under the influence of alcohol, controlled substance, or combination thereof
  • Blood Alcohol Content (BAC) of .08 grams or more
  • Use of alcohol, controlled substance, or combination thereof impairs the ability to use a firearm

Penalties

A person found guilty of possessing, using, or discharging a firearm while under the influence of alcohol is guilty of a misdemeanor punishable by up to 93 days in jail and a fine up to $100 for being in possession and a fine up to $500 for using or discharging. If someone is injured or dies as a result of discharging a firearm while under the influence, it is a felony. If the discharge of the firearm causes serious impairment of a bodily function (serious injury) it is punishable by up to five years in prison and/or a fine from $1,000-5,000 plus costs. If the discharge caused the death of another person, it is punishable by up to 15 years in prison and a fine from $2,500-10,000 plus costs. The definition for serious injury is the same as used in the law for an OWI Causing Serious Injury or a Moving Violation Causing Serious Injury.

Can the Police Make Me Take a Chemical Test?

If a police officer has probable cause to believe you are using or possessing a gun under the influence of alcohol or a controlled substance, he can require you to submit to a chemical test (breath, blood, or urine). They are the same chemical tests used in OWI drunk driving cases. If the suspect is a hemophiliac, has diabetes, or has a condition requiring the use of a coagulant, the suspect cannot be required to submit to a blood test.

Before submitting to a chemical test the police officer must inform a suspect of the following:

  • If the suspect refuses to submit, the police officer may seek a warrant from a judge or magistrate for the chemical test
  • If the suspect submits, he may seek a second chemical test of his choosing and at his own expense

It is important to note that even if the officer does not read these chemical test rights it does not mean that the chemical tests are inadmissible at trial. The collecting and testing is done in the same manner as required for an OWI.

If you are charged with possessing or using a firearm while under the influence of alcohol, you need an experienced firearms criminal defense attorney representing you. Call Austin Legal Services, PLC at (517) 614-1983 to speak with a Michigan criminal defense attorney today!

Defending possessing, using, and discharging a firearm under the influence of alcohol and other firearms and weapons charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Calhoun, Kalamazoo, Barry, Kent, Washtenaw, Branch in the cities of: Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Battle Creek, Grand Rapids, Hastings, Ann Arbor, Coldwater.

 

Various Michigan Firearm Laws

Firearm 2

Lansing Michigan Firearm Defense Lawyer

Among the most frequently prosecuted firearm laws are carrying a concealed weapon, a felon in possession of a firearm, and a firearm used in the commission of a felony (felony firearm). There are numerous other firearm laws and restrictions however, which I will discuss.

Transporting or Possessing a Firearm in or Upon a Motor Vehicle

Under MCL 750.227d, it is a crime for a person to transport or possess a firearm in or upon a motor vehicle. However, the law does allow some exceptions.  The law applies to firearms (other than pistols) and pneumatic guns that expels a metallic BB or metallic pellet greater than .177 caliber. Michigan law generally prohibits carrying a firearm in a motor vehicle while being operated, whether concealed or not concealed, unless that person has a concealed pistol license (CPL) or is a licensed firearm dealer lawfully transporting a firearm or an agent of such a licensee.

It is not a violation of the statute if the firearm is unloaded and one or more of the following applies:

  • the firearm is taken down
  • enclosed in a case
  • carried in the trunk of the vehicle
  • inaccessible from the interior of the vehicle

Penalties

Carrying a loaded firearm in or upon a motor vehicle is a misdemeanor punishable by up to 90 days in jail and/or a fine up to $100 plus costs.

Altering, Removing, or Obliterating Identification Marks on a Firearm

Under MCL 750.230 it is unlawful for a person to willfully alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other marks of identification of a pistol or other firearm. Any person who violates this statute is guilty of a felony punishable by up to two years in prison and/or a fine up to $1,000 plus costs. The law also states that anyone in possession of a firearm with altered, removed, or obliterated marks is presumed to be the person who altered, removed, or obliterated them. However, this particular provision was ruled unconstitutional in 1978 as the burden of proof lies solely with the prosecution.

Michigan Firearm Defense Attorney

Being charged with a firearm or weapons violation can have serious consequences including jail, prison, loss of gun rights, mandatory forfeiture of the firearm, not to mention red flags for future employers. Firearm charges are treated very seriously by prosecutors and judges and many will not offer reductions or plea agreements. You don’t have to let a gun charge ruin your future. If you have been charged with a firearms crime, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan firearm defense lawyer!

Defending firearm charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Kent, Barry, Branch, Hillsdale, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, Howell, Livingston, St. Johns, Ithaca, Ann Arbor, Grand Rapids, Jackson, Hillsdale, Hastings, Coldwater.

 

Carrying a Concealed Weapon (CCW)

CCW

Lansing Michigan Weapons Charges Defense Lawyer

 

In Michigan, carrying a concealed weapon (CCW) is a violation of MCL 750.227 and a very serious charge. The maximum punishment is up to five years in prison, $2,500 in fines, and forfeiture of the weapon. Many prosecutors will not offer a misdemeanor plea, even for first offenders. If you have been charged with carrying a concealed weapon, you need a criminal defense attorney on your side with experience in defending weapons charges.

 

Defining a Weapon

 

For purposes of CCW, a weapon is defined as:

 

  • Pistol
  • Dirk
  • Dagger
  • Stiletto
  • Double-edge non-folding stabbing instrument of any length
  • Any other dangerous weapon (except a hunting knife adapted and carried as such)

 

Carrying and Concealed

 

It is required that the defendant knowingly carried the weapon. The reason why he was carrying it doesn’t matter.  A weapon is concealed if it is not easily seen by those who come into normal contact with the defendant. Complete invisibility is not required. For example, if the grip of the gun is slightly protruding from defendant’s coat or under a car seat, it is concealed even though it isn’t entirely covered up.

 

A weapon can be concealed on someone’s person or in a vehicle. If charged with carrying a concealed weapon in a vehicle, the defendant must have either placed the weapon in the car or knew the weapon was in the car and took part in either carrying or keeping the weapon in the car.

 

Defenses to Carrying a Concealed Weapon

 

  • Defendant didn’t know the weapon was there—CCW is a specific intent crime and thus requires a “knowing” element. If Defendant was not aware the weapon was there or if the prosecutor cannot prove he knew it was there beyond a reasonable doubt, he cannot be convicted. This is frequently used as a defense when the weapon was found in a car. Circumstantial evidence plays a big role in this defense. For example, there was more than one person in the car, the gun was not registered to the defendant, the defendant is not the owner of the car. The defendant can use those to argue that he did not know it was there or create reasonable doubt that he knew it was there. The location of the weapon also is an important factor in this defense.

 

  • The weapon wasn’t concealed—This is an obvious element of the charge but it is not one to be overlooked. If the weapon did not meet the statutory definition of being concealed, defendant cannot be convicted.

 

  • Defendant Had a Concealed Pistol License—A concealed pistol license (CPL) gives lawful authority for someone to carry a concealed gun. However, this only applies if you have a valid CPL and you were carrying it in the location and manner prescribed by law.

 

  • Defendant was Carrying the Weapon in His Home—You are lawfully permitted to carry a concealed weapon in your own house.

 

Plea Deals and Plea Negotiations

 

In an attempt to appear tough on crime, many prosecutors are very tough on any kind of weapons charge. A lot of prosecutors won’t even offer pleas to reduced charges, even if it is your first offense and you had no intent to do something unlawful or dangerous with the weapon. That places the defendant between a rock and hard place and is very frustrating and seems unfair. It also encourages litigation because the defendant essentially has nothing to lose if his offer is to “plead on the nose” unless other charges are being dismissed or there is a good sentencing agreement. If you have a previous felony record and you are caught with a weapon or gun, chances are you will be facing three charges: 1) carrying a concealed weapon, 2) felon in possession of a firearm, and 3) felony firearm. In that situation, your options are even worse. If you are an habitual offender, the maximum penalty increases even further.

 

If your case is weak or the prosecutor is willing to offer a plea because of mitigating circumstances there are some options. Brandishing a firearm is a minor misdemeanor punishable by up to 90 days in jail and possession of a switchblade or automatic knife is a misdemeanor punishable by up to one year in jail. There may be Fourth Amendment violations with your case that could lead to a suppression of the evidence or a dismissal of the charge. If convicted, you automatically lose your right to own, possess, or carry a firearm under state law and may have to wait years before those rights are restored.

 

If you or someone you know has been charged with carrying a concealed weapon, you need to be represented by an experienced Michigan criminal defense attorney. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan weapons charges defense lawyer.

 

Defending carrying a concealed weapon charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Shiawassee, Barry, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Jackson, Corunna, Durand, Hastings, Grand Rapids, Ann Arbor.

 

 

Felony Firearm

Felony Firearm

Lansing Michigan Felony Firearms Criminal Defense Attorney

Felony firearm is defined under MCL 750.227b as carrying or possessing a firearm while committing or attempting to commit a felony. There is a mandatory punishment of two years in prison, regardless of what your sentencing guidelines are, and that sentence must be served consecutively to any other sentence that is imposed. If it is your second offense, the penalty is five years in prison and for third and subsequent offenses; the punishment is 10 years in prison. Again, consecutive sentencing applies.

The Michigan legislature takes firearm charges very seriously. So do prosecutors and judges. The felony firearm is worse because not only is it an additional felony charge to the other felony charges(s) you are facing, but you are guaranteed to serve at least two years in prison in addition to your other sentence. For example, if you are charged with armed robbery and you use a gun, not only do you face the armed robbery charge, but you face the felony firearm charge. It makes a bad situation much worse.

Convicted Felons and the Felony Firearm Charge

If you have a felony record and you are caught with a firearm, chances are you will be facing three felony counts: 1) Carrying a Concealed Weapon, 2) Felon in Possession of a Firearm, and 3) Felony Firearm. The underlying felony for the felony firearm charge being you were a felon in possession of a firearm. It’s that circular logic that will have you facing some serious prison time, even if you weren’t committing or attempting to commit a violent felony with the firearm. If you are charged as an habitual offender, the maximum penalty is even higher.

Not only does it add more charges and make your potential sentence much higher, but it also gives prosecutors extra bargaining power during plea negotiations. Instead of offering a reduction in the charge, often prosecutors will offer to dismiss some or all of the other counts if you plead guilty to the felony firearm charge. That guarantees you a two-year stint in the Michigan Department of Corrections and there is nothing the judge can do about it. They have no discretion because it is a mandatory sentence imposed by law.

Aggressive Firearms Charges Defense

If you have been charged with felony firearm, you need a strong Michigan firearms defense attorney to advocate on your side because the options you have presented will not be good. There may be grounds to challenge the police contact or other evidentiary errors or Fourth Amendment violations that could lead to suppression of the evidence. There may be defenses or reasonable doubt to the underlying felony that is a necessary element of the felony firearm charge. If the jury does not believe you committed or were attempting to commit a felony beyond a reasonable doubt, then you cannot be convicted of felony firearm.

Other Defenses to Felony Firearm

You cannot be convicted of felony firearm if you are a law enforcement officer performing his duties or if the underlying felony is carrying a concealed weapon or a subsequent violation for selling firearms or ammunition without complying with licensing requirements.

If you have been charged with felony firearm, you need an aggressive firearms lawyer on your side. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan firearms defense attorney.

 

Defending felony firearm charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Kent, Shiawassee, Jackson, Livingston, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Battle Creek, Kalamazoo, Grand Rapids, Corunna, Jackson, Brighton, Howell, Ann Arbor.