Interesting NYS Case

[BC1]

I reviewed an interesting case this weekend. The attorney on the case gave me these specifics. Crazy...

Joe Blow riding in passenger seat with friend. Both have been drinking and are smoking pot in the car. LEO sees them smoking and pulls over the car. He smells the dope at the driver's window. Passenger has eaten the joint.

Both parties are pulled out, car is tossed and a pot-pipe is found. Driver is arrested for DUI. He gives a statement at the scene indicating that the passenger ate the joint. LEO moves to the passenger. Searches him and finds a registered .38 in his pocket. LEO arrests the passenger for possession, obstruction and felony evidence tampering. Passenger runs his lip through the arrest/booking process making repeated admissions against his penal interest. He is released without bail and his guns/ammo are returned.

Justice department contacts passenger demanding surrender of permit and guns until matter is settled. Passenger complies. In court proceedings it is discovered that the officer confused the charges, wrongly charging the passenger with DUI. There is no account of the joint being eaten and the description of the incident states both parties smoked from the pipe.

Attorney meets with DA who dismisses all charges. DA says he can't prosecute for evidence tampering because the joint is not mentioned in the police report. The DUI charge was dropped becuase he wasn't the driver. No charges are filed for carrying the gun while drunk as there is no specific law against it.

Ultimlately the driver plead guilty to the DUI. The passenger's guns were returned to him.


Now the question... should the passenger be able to retain his guns? Is he a danger to society as he's drunk while carrying. Should there be a law against doing so?

Let the frackas begin..............

 

[BIGJOHN621]

I reviewed an interesting case this weekend. The attorney on the case gave me these specifics. Crazy...

Joe Blow riding in passenger seat with friend. Both have been drinking and are smoking pot in the car. LEO sees them smoking and pulls over the car. He smells the dope at the driver's window. Passenger has eaten the joint.

Both parties are pulled out, car is tossed and a pot-pipe is found. Driver is arrested for DUI. He gives a statement at the scene indicating that the passenger ate the joint. LEO moves to the passenger. Searches him and finds a registered .38 in his pocket. LEO arrests the passenger for possession, obstruction and felony evidence tampering. Passenger runs his lip through the arrest/booking process making repeated admissions against his penal interest. He is released without bail and his guns/ammo are returned.

Justice department contacts passenger demanding surrender of permit and guns until matter is settled. Passenger complies. In court proceedings it is discovered that the officer confused the charges, wrongly charging the passenger with DUI. There is no account of the joint being eaten and the description of the incident states both parties smoked from the pipe.

Attorney meets with DA who dismisses all charges. DA says he can't prosecute for evidence tampering because the joint is not mentioned in the police report. The DUI charge was dropped becuase he wasn't the driver. No charges are filed for carrying the gun while drunk as there is no specific law against it.

Ultimlately the driver plead guilty to the DUI. The passenger's guns were returned to him.


Now the question... should the passenger be able to retain his guns? Is he a danger to society as he's drunk while carrying. Should there be a law against doing so?

Let the frackas begin..............

Nothing like throwing a wolf into a hen house........

 

[ArmoredG22]

I hate NYS but that would be a smart law to make. If I go out with my pistol and meet a few friends at a bar, i'll have only water or pop. I do not want any alcohol in my system if i have to use it. Only exception would be my home obviously.

 

[CharonPDX]

Is this person a danger? Probably.

Should he be in possession of a firearm? Probably not.

Should there be a law to remove this un-convicted person's firearm rights? Absolutely not. His danger is a choice, not a permanent condition. The only people that we should even consider removing rights from without a criminal conviction are those who are a proven danger to his/herself or others, not by choice. (AKA: The diagnosed mentally ill.)

The only slippery slope I can see on that is that if the mentally ill person is on medication, they should be treated as normal - but what happens when they stop taking their medication? How do we ensure that someone who is an honest-to-goodness danger when unmedicated stays on their meds? Or do we just revoke all firearm rights for that person forever, because they *MAY* go off their meds and become a danger?

 

[NavyLCDR]

Same argument. Different disguise. I agree with CharonPDX.

And just for fun, I'll toss in a dead horse!
Link Removed

 

[nogods]

I don't think being drunk while possessing a weapon should be a sufficient reason to eliminate the ability to own a firearm.

But I'd want to know about the circumstances to decide if he is irresponsible enough to be prohibited from legally possessing a firearm.

Was the gun loaded? Did he have possession of it before he started ingesting alcohol?

Maybe if the gun was loaded it would suggest he is not responsible enough to know that using his weapon with diminished capacity is a danger to himself and others.

But if he had unloaded the weapon as he began to ingest alcohol it would suggest he was a responsible gun owner who knew that use of his weapon while in a diminished capacity would not be a great idea.

But just having a weapon with ammunition doesn't seem to me be irresponsible,

 

[Rich_S]

Here we do have a law against carrying under the influence. Of course under the influence isn't defined so it means whatever the arresting officer wants it to mean. I would have to say this guy is a danger to himself and others for carrying while drunk.

 

[BC1]

I don't think being drunk while possessing a weapon should be a sufficient reason to eliminate the ability to own a firearm.

But I'd want to know about the circumstances to decide if he is irresponsible enough to be prohibited from legally possessing a firearm.

Was the gun loaded? Did he have possession of it before he started ingesting alcohol?

Maybe if the gun was loaded it would suggest he is not responsible enough to know that using his weapon with diminished capacity is a danger to himself and others.

But if he had unloaded the weapon as he began to ingest alcohol it would suggest he was a responsible gun owner who knew that use of his weapon while in a diminished capacity would not be a great idea.

But just having a weapon with ammunition doesn't seem to me be irresponsible,

Yes. He went to a Christmas party with his gun where he consumed several drinks. The .38 was loaded in his front pocket even as he smoked pot in the car.

There's much more. His comments to LE while in custody were off-the-wall. He taunted them repeatedly.

He was present as his attorney was telling me about the case. He was laughing as if this was all entertaining.

 

[CharonPDX]

I don't think being drunk while possessing a weapon should be a sufficient reason to eliminate the ability to own a firearm.

Exactly. Being drunk while driving a car may get your license revoked for some time, but that privilege restores automatically after a period of time, and the ability to own a car is not revoked. I can understand taking away someone's concealed handgun license for a period of time if they are caught using a firearm while intoxicated - but not removing their right to own a firearm. In states with constitutional concealed carry, they have by definition said that you are by default allowed to carry, thus, no penalty for the act of carrying while intoxicated.

Obviously, if someone uses a firearm while intoxicated, any ill event that occurs as a part of that should be punished fully.

 

[NavyLCDR]

The cops screwed up, the defense attorney took advantage of it, and the criminal walks away unscathed. Happens every day. Sometimes what we feel is the moral answer is not the correct answer if we are truly interested in preserving 4th and 5th amendment rights...and sometimes the 2nd amendment.

 

[TAC]

I may be out of line here, but I do not see anything indicating that the individual was drunk. He may have been, I do not know, but based on what was stated the individual did have some drinks while in possession of a firearm (I do not know whether or not that is legal in NYS). But nowhere does it indicate whether or not he was intoxicated, just that he had been drinking. I know that I am not drunk after a drink. Not even after several drinks if I have been eating and the drinks are spread out over a longer period of time (of course, I also do not carry if I am drinking – even just one drink).

As to the pot smoking… that is an entirely different matter.

Would I advocate him losing his firearm, or even his permit? Not based on this. It would take a lot more detail along with an explanation of the applicable laws before I would even consider taking away somebodies constitutionally guaranteed rights.

 

[CharonPDX]

As William Blackstone said: "Better that ten guilty persons escape than that one innocent suffer." That is what our legal system is based on.

 

[BC1]

I may be out of line here, but I do not see anything indicating that the individual was drunk. He may have been, I do not know, but based on what was stated the individual did have some drinks while in possession of a firearm (I do not know whether or not that is legal in NYS). But nowhere does it indicate whether or not he was intoxicated, just that he had been drinking. I know that I am not drunk after a drink. Not even after several drinks if I have been eating and the drinks are spread out over a longer period of time (of course, I also do not carry if I am drinking – even just one drink).

As to the pot smoking… that is an entirely different matter.

Would I advocate him losing his firearm, or even his permit? Not based on this. It would take a lot more detail along with an explanation of the applicable laws before I would even consider taking away somebodies constitutionally guaranteed rights.

The individual made an admission against his penal interest while being questioned on the side of the road. He told the LEO he was drunk. He readily admited that to me as well. Plus, he was caught smoking the joint. He thought it was funny. NYS has no firearm law regarding alcohol but carrying a firearm while drunk can be construed as reckless behavior.

 

[Deserteagle]

Now the question... should the passenger be able to retain his guns? Is he a danger to society as he's drunk while carrying. Should there be a law against doing so?

Not quite sure what the punishment should be, but carrying a deadly weapon while under the influence of marijuana and alcohol is plain stupid. What an idiot.