Kelly Crisp Brock
New member
We will call this a 'hypothetical" question.
Opinions please, highly thankful!
A person is being charged with Ohio RC 2923.15 (A) which reads as : Using weapons while intoxicated.
(A) No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.
(B) Whoever violates this section is guilty of using weapons while intoxicated, a misdemeanor of the first degree.
Effective Date: 01-01-1974
Short and sweet and no definition of what intoxicated even constitutes as.
Here is an abstract from 2923.12
2923.12 Carrying concealed weapons.
(A) No person shall knowingly carry or have, concealed on the person's person or concealed ready at hand, any of the following:
(1) A deadly weapon other than a handgun;
(2) A handgun other than a dangerous ordnance;
(3) A dangerous ordnance.
(B) No person who has been issued a concealed handgun license shall do any of the following:
(1) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a concealed handgun license and that the person then is carrying a concealed handgun;
(2) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly fail to keep the person's hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;
(3) If the person is stopped for a law enforcement purpose, if the person is carrying a concealed handgun, and if the person is approached by any law enforcement officer while stopped, knowingly remove or attempt to remove the loaded handgun from the holster, pocket, or other place in which the person is carrying it, knowingly grasp or hold the loaded handgun, or knowingly have contact with the loaded handgun by touching it with the person's hands or fingers at any time after the law enforcement officer begins approaching and before the law enforcement officer leaves, unless the person removes, attempts to remove, grasps, holds, or has contact with the loaded handgun pursuant to and in accordance with directions given by the law enforcement officer;
(4) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person's hands in plain sight.
If a licensee is stopped for a law enforcement purpose and if the licensee is carrying a concealed handgun at the time the officer approaches, the licensee shall promptly inform any law enforcement officer who approaches the licensee while stopped that the licensee has been issued a concealed handgun license and that the licensee currently is carrying a concealed handgun; the licensee shall not knowingly disregard or fail to comply with lawful orders of a law enforcement officer given while the licensee is stopped or knowingly fail to keep the licensee's hands in plain sight after any law enforcement officer begins approaching the licensee while stopped and before the officer leaves, unless directed otherwise by a law enforcement officer; and the licensee shall not knowingly remove, attempt to remove, grasp, or hold the loaded handgun or knowingly have contact with the loaded handgun by touching it with the licensee's hands or fingers, in any manner in violation of division
(B) of section 2923.12 of the Revised Code, after any law enforcement officer begins approaching the licensee while stopped and before the officer leaves.
(D) A person who holds a valid concealed handgun license issued by another state that is recognized by the attorney general pursuant to a reciprocity agreement entered into pursuant to section 109.69 of the Revised Code or a person who holds a valid concealed handgun license under the circumstances described in division (B) of section 109.69 of the Revised Code has the same right to carry a concealed handgun in this state as a person who was issued a concealed handgun license under section 2923.125 of the Revised Code and is subject to the same restrictions that apply to a person who carries a license issued under that section.
PARTICULARS OF THIS HYPOTHETICAL CASE
1.The person has a legal CCW, had it securely out of site in a handbag, was walking home after an argument , late at night, and was stopped by the police.
2.After the stop the person was offered 3 options, go back to where she was arguing with a family member to 1) press charges, 2 get a cab ( had no money), or 3 go to the police station with the office ( no reason??)
3. The person asked to be aloud to continue on their way and was told they could not.
4. Before giving the officer the ID, she put her hands in the air and announced that she had a CCW and loaded weapon in her purse, as she was taught that was the law in the state of XXXX
5. Upon revealing this information, she was put in handcuffs and put in the police car and told she was guilty of a Felony 5, her gun was confiscated and was told to blow for an alcohol count, which read .06
6. The person asked to do other sobriety test to show t hat they were not intoxicate, but was denied.
7. The person was denied the opportunity to have someone pick them up at the scene
8. The persons ID and CCW was not even checked until going to the police station
6. The person was taken to booking and charged with Ohio RC 2923 15 "Using a weapon while intoxicated" a M1 charge, and then taken to The XXX County Jail, and given bail.
7. After weeks of trying to get a report, and the audio, this person was finally sent the report from from her Public Defender.
8. All of the paperwork was marked " cannot be used for public purposes, only Police investigations" Ns the Video was not aloud released
9. When asking the Public Defender to collaborate the story by listening to the Video, was told that the Video/audio was not started until after they were booked, therefore there was no proof of what was said or seen before the arrest.
The Report from the unnamed officer stated, and I quote "On June 20. 2015 I was eastbound on XXX when I observed XXXX XXXX walking down the sidewalk crying. I pulled up next to XXXXX and got out to check on her. I could detect a moderate odor of an unknown alcoholic beverage emitting from XXXXX. XXXXX informed me she and her daughter had gotten into an argument on the way home from XXXXXXX Pub in XXXXXX. XXXX said she got out of the car and began walking on XXXXX RD near XXXX XXXXX. When asked for ID,before reaching into her purse, XXXX informed me that she had a (out of state) XXXXXX CCW permit and was carrying a loaded firearm in her purse. I took the purse from XXXXX and placed her in the back of cruiser #2. In XXXX's purse I recovered a Smith & Wesson .38 loaded with five rounds. Once removing the firearm, I gave the purse back to XXXXX who provided me with her (out of state) XXXXX drivers license and XXXX CCW permit. I asked XXXXX to perform a breathe sample on the PBT, which read .060. XXXX was placed under arrest for carrying a loaded firearm and booked her into the XXXX County jail.
Here is my question.....Is it possible that this person's 5th amendment rights were violated, as she was required to, by the states law, to announce that she had a weapon before giving the officer her ID or proceeding in anyway with the stop?
After all, she was not stopped for any "lawful crime", and was not found guilty/suspect of any other crime at that time, or even after her arrest.
There was not a crime until she revealed that she had the firearm and CCW, which was itself a required state law.
Wasn't she technically incriminating herself by telling the officer she had the gun? Wasn't it a violation of her rights?
If she wasn't stopped, or even if she was, she did not have to reveal that she had a CCW, if she was able to just hand over her license, and as a result,she would have most likely have been let go, as there was no additional crime.
At least, that's what I am leaning towards. I may be way off base, but would love to hear some others thoughts on this.
I'm just looking for opinions.
Thank you in advance!
Opinions please, highly thankful!
A person is being charged with Ohio RC 2923.15 (A) which reads as : Using weapons while intoxicated.
(A) No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance.
(B) Whoever violates this section is guilty of using weapons while intoxicated, a misdemeanor of the first degree.
Effective Date: 01-01-1974
Short and sweet and no definition of what intoxicated even constitutes as.
Here is an abstract from 2923.12
2923.12 Carrying concealed weapons.
(A) No person shall knowingly carry or have, concealed on the person's person or concealed ready at hand, any of the following:
(1) A deadly weapon other than a handgun;
(2) A handgun other than a dangerous ordnance;
(3) A dangerous ordnance.
(B) No person who has been issued a concealed handgun license shall do any of the following:
(1) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, fail to promptly inform any law enforcement officer who approaches the person after the person has been stopped that the person has been issued a concealed handgun license and that the person then is carrying a concealed handgun;
(2) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly fail to keep the person's hands in plain sight at any time after any law enforcement officer begins approaching the person while stopped and before the law enforcement officer leaves, unless the failure is pursuant to and in accordance with directions given by a law enforcement officer;
(3) If the person is stopped for a law enforcement purpose, if the person is carrying a concealed handgun, and if the person is approached by any law enforcement officer while stopped, knowingly remove or attempt to remove the loaded handgun from the holster, pocket, or other place in which the person is carrying it, knowingly grasp or hold the loaded handgun, or knowingly have contact with the loaded handgun by touching it with the person's hands or fingers at any time after the law enforcement officer begins approaching and before the law enforcement officer leaves, unless the person removes, attempts to remove, grasps, holds, or has contact with the loaded handgun pursuant to and in accordance with directions given by the law enforcement officer;
(4) If the person is stopped for a law enforcement purpose and is carrying a concealed handgun, knowingly disregard or fail to comply with any lawful order of any law enforcement officer given while the person is stopped, including, but not limited to, a specific order to the person to keep the person's hands in plain sight.
If a licensee is stopped for a law enforcement purpose and if the licensee is carrying a concealed handgun at the time the officer approaches, the licensee shall promptly inform any law enforcement officer who approaches the licensee while stopped that the licensee has been issued a concealed handgun license and that the licensee currently is carrying a concealed handgun; the licensee shall not knowingly disregard or fail to comply with lawful orders of a law enforcement officer given while the licensee is stopped or knowingly fail to keep the licensee's hands in plain sight after any law enforcement officer begins approaching the licensee while stopped and before the officer leaves, unless directed otherwise by a law enforcement officer; and the licensee shall not knowingly remove, attempt to remove, grasp, or hold the loaded handgun or knowingly have contact with the loaded handgun by touching it with the licensee's hands or fingers, in any manner in violation of division
(B) of section 2923.12 of the Revised Code, after any law enforcement officer begins approaching the licensee while stopped and before the officer leaves.
(D) A person who holds a valid concealed handgun license issued by another state that is recognized by the attorney general pursuant to a reciprocity agreement entered into pursuant to section 109.69 of the Revised Code or a person who holds a valid concealed handgun license under the circumstances described in division (B) of section 109.69 of the Revised Code has the same right to carry a concealed handgun in this state as a person who was issued a concealed handgun license under section 2923.125 of the Revised Code and is subject to the same restrictions that apply to a person who carries a license issued under that section.
PARTICULARS OF THIS HYPOTHETICAL CASE
1.The person has a legal CCW, had it securely out of site in a handbag, was walking home after an argument , late at night, and was stopped by the police.
2.After the stop the person was offered 3 options, go back to where she was arguing with a family member to 1) press charges, 2 get a cab ( had no money), or 3 go to the police station with the office ( no reason??)
3. The person asked to be aloud to continue on their way and was told they could not.
4. Before giving the officer the ID, she put her hands in the air and announced that she had a CCW and loaded weapon in her purse, as she was taught that was the law in the state of XXXX
5. Upon revealing this information, she was put in handcuffs and put in the police car and told she was guilty of a Felony 5, her gun was confiscated and was told to blow for an alcohol count, which read .06
6. The person asked to do other sobriety test to show t hat they were not intoxicate, but was denied.
7. The person was denied the opportunity to have someone pick them up at the scene
8. The persons ID and CCW was not even checked until going to the police station
6. The person was taken to booking and charged with Ohio RC 2923 15 "Using a weapon while intoxicated" a M1 charge, and then taken to The XXX County Jail, and given bail.
7. After weeks of trying to get a report, and the audio, this person was finally sent the report from from her Public Defender.
8. All of the paperwork was marked " cannot be used for public purposes, only Police investigations" Ns the Video was not aloud released
9. When asking the Public Defender to collaborate the story by listening to the Video, was told that the Video/audio was not started until after they were booked, therefore there was no proof of what was said or seen before the arrest.
The Report from the unnamed officer stated, and I quote "On June 20. 2015 I was eastbound on XXX when I observed XXXX XXXX walking down the sidewalk crying. I pulled up next to XXXXX and got out to check on her. I could detect a moderate odor of an unknown alcoholic beverage emitting from XXXXX. XXXXX informed me she and her daughter had gotten into an argument on the way home from XXXXXXX Pub in XXXXXX. XXXX said she got out of the car and began walking on XXXXX RD near XXXX XXXXX. When asked for ID,before reaching into her purse, XXXX informed me that she had a (out of state) XXXXXX CCW permit and was carrying a loaded firearm in her purse. I took the purse from XXXXX and placed her in the back of cruiser #2. In XXXX's purse I recovered a Smith & Wesson .38 loaded with five rounds. Once removing the firearm, I gave the purse back to XXXXX who provided me with her (out of state) XXXXX drivers license and XXXX CCW permit. I asked XXXXX to perform a breathe sample on the PBT, which read .060. XXXX was placed under arrest for carrying a loaded firearm and booked her into the XXXX County jail.
Here is my question.....Is it possible that this person's 5th amendment rights were violated, as she was required to, by the states law, to announce that she had a weapon before giving the officer her ID or proceeding in anyway with the stop?
After all, she was not stopped for any "lawful crime", and was not found guilty/suspect of any other crime at that time, or even after her arrest.
There was not a crime until she revealed that she had the firearm and CCW, which was itself a required state law.
Wasn't she technically incriminating herself by telling the officer she had the gun? Wasn't it a violation of her rights?
If she wasn't stopped, or even if she was, she did not have to reveal that she had a CCW, if she was able to just hand over her license, and as a result,she would have most likely have been let go, as there was no additional crime.
At least, that's what I am leaning towards. I may be way off base, but would love to hear some others thoughts on this.
I'm just looking for opinions.
Thank you in advance!
