“Guns don’t kill people, people do.” When it comes to innocent victims being hurt or killed by firearms, the person holding the gun is the ultimately responsible and the gun is the proximate cause. There is no question that firearms are inherently dangerous and outright deadly when placed in the wrong hands. Those hands are even more precarious when they belong to someone who is under the influence of alcohol or drugs. Michigan law criminalizes the use or possession of a firearm when the individual is impaired or intoxicated. Failure to obey this statute can lead to fines, probation and even incarceration.
An individual shall not carry, have in possession or under control, or use in any manner or discharge a firearm, contrary to MCL 750.237(1), under ANY of the following circumstances:
- (a) The individual is under the influence of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance.
- (b) The individual has an alcohol content of 0.08 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
- (c) Because of the consumption of alcoholic liquor, a controlled substance, or a combination of alcoholic liquor and a controlled substance, the individual’s ability to use a firearm is visibly impaired.
An individual who violates MCL 750.237(1) is guilty of a crime the carries the following penalties:
- If the individual carried or possessed the firearm only, a misdemeanor conviction punishable by a fine up to $100.00 or up to 93 days in jail, or both. MCL 750.237(2).
- If the individual uses or discharges the firearm, a misdemeanor conviction punishable by a fine up to $500.00 or up to 93 days in jail, or both. MCL 750.237(2).
- If the violation causes a serious impairment of a body function of another individual by the discharge or use in any manner of the firearm, a felony conviction punishable by a fine between $1,000.00 and $5,000.00 or up to 5 years in state prison, or both. MCL 750.237(3). “Serious impairment of a body function” includes, but is not limited to, one or more of the following:
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- Loss of a limb or use of a limb.
- Loss of a hand, foot, finger, or thumb or use of a hand, foot, finger, or thumb.
- Loss of an eye or ear or of use of an eye or ear.
- Loss or substantial impairment of a bodily function.
- Serious visible disfigurement.
- A comatose state that lasts for more than 3 days.
- Measurable brain damage or mental impairment.
- A skull fracture or other serious bone fracture.
- Subdural hemorrhage or subdural hematoma.
- Loss of an organ.
- If the violation causes the death of another individual by the discharge or use in any manner of a firearm, a felony conviction punishable by fine between $2,500.00 and $10,000.00 or up to 15 years in prison, or both. MCL 750.237(4).
- In addition, all pistols and weapons used contrary to these laws are forfeited to the state and shall be turned over to the Michigan State Police for disposition. MCL 750.230(1).
A police office who has probable cause to believes an individual is using or possessing a firearm under the influence of alcohol or drugs may require the individual to submit to a chemical analysis of his or her breath, blood, or urine. MCL 750.237(5). This chemical analysis can be completed by submitting to Datamaster breathalyzer test or a blood test in the same manner that a police officer would collect this information for suspected driving under the influence. MCL 750.237(8). Before a police officer requires an individual to submit to a chemical analysis, he or she must inform the individual that he or she has a right to refuse (but if the person refuses, the officer may obtain a court order requiring submission to a chemical analysis). MCL 750.237(6)(a). “However, an individual who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not required to submit to a chemical analysis of his or her blood.” MCL 750.237(5).
This statute does pose an interesting problem with its broad application. A person under the influence is guilty of a crime if they constructively possess or have under his or her control a firearm, even if the person was in his or her own home. In People v Deroche, 299 Mich App 301; 829 NW2d 891 (2013), police officers responded to a verbal altercation at the defendant’s home in Novi, Michigan. The defendant was intoxicated, and police officers later located a gun that the mother-in-law said she had taken from the defendant and hid in a garbage can in the laundry room. The prosecutor charged the defendant with possessing a firearm while intoxicated because he had constructive possession of the weapon. The defendant appealed on the grounds that MCL 750.237, as applied to him, is unconstitutional because it violates his Second Amendment rights to bear arms in his home for purposes of self-defense. The Michigan Court of Appeals agreed and found that the statute’s infringement on the defendant’s rights was not substantially related to the legislature’s aims of gun control. He did not even actually possess the gun at the time the officers entered his home. “[T]o allow application of this statute to defendant under these circumstances, [the court] would in essence be forcing a person to choose between possessing a firearm in his or her home and consuming alcohol.” 299 Mich App at 311. This choice is unreasonable, so “the government cannot justify infringing on defendant’s Second Amendment right to possess a handgun in his home simply because defendant was intoxicated in the general vicinity of the firearm.” 299 Mich App at 312.
However, the Michigan Court of Appeals quickly clarified that keeping weapons in your home for self-defense while under the influence was not unlimited. In People v Wilder, 307 Mich App 546; 861 NW2d 645 (2014), the defendant contacted the police with respect to an altercation with her domestic partner at home. Police officers determined that the defendant, a retired deputy sheriff, had a blood alcohol content of 0.13. The defendant admitted she briefly possessed a firearm, but it was “solely for the purpose of moving the gun for personal safety or precautionary reasons”. The defendant was found guilty of possession of a firearm while intoxicated by a jury. In a motion for a new trial, the judge denied setting aside the conviction since, unlike Deroche, there was evidence of actual possession by the defendant and used the gun to threaten the victim. The defendant appealed, arguing that the statute was unconstitutional as applied to her under the Second Amendment. The Michigan Court of Appeals declined to set aside the conviction:
- “Here, while defendant generally possessed the gun in her own home as a means of self-defense, which ordinarily falls within the scope of the Second Amendment, there was indeed evidence that, as opposed to the circumstances in Deroche, defendant used the gun for an unlawful or unjustifiable purpose, i.e., she threatened and assaulted the complainant with the gun. Because there was evidence that defendant used the gun for an unlawful purpose, which would not be protected by the constitutional right to keep and bear arms, the trial court properly denied the pretrial motion to dismiss the PFWI charge…”. 861 NW2d at 651.
Since there was no evidence presented that the defendant was actually acting in self-defense or that she was acting out of necessity, then there was no basis to set aside the conviction. The Second Amendment only goes so far.
A charge of using or possessing a firearm while under the influence is a serious offense that prosecutors and judges will not take lightly. The chances of incarceration are extremely high as the court will not be forgiving to what they might interpret as negligent or reckless behavior. You need a skilled criminal defense attorney in your corner to protect your rights and ensure you are treated fairly under the law. The evidence may show that the police officer did not adequately determine that the defendant was intoxicated or impaired. The prosecutor may not be able to show that the defendant even had constructive possession of the weapon. Even if the evidence against you is strong, a lawyer on your side may even be able to negotiate the charge to a lesser offense (e.g. disorderly person).
If you or a loved one is charged with a firearm crime or any other criminal offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
