New Year’s Eve, Drinking, and Firearms

Drinking and firearms don’t mix! Let’s start with the fact that drinking and firearms can be a lethal combination. Understand, we are not recommending you consume alcohol or intoxicating drugs and carry a firearm. We are telling you what the law allows and what it does not. In many states, you may not possess a firearm if you are consuming alcohol. Florida is not one of them.

In Florida, you can posses a firearm while consuming alcohol. In fact, you may possess a firearm and be commode hugging, lying in a pool of your own vomit drunk.

The end of the year is often filled with parties and celebrations. Many offices have annual Christmas or Holiday Parties and everyone likes to party on New Year’s Eve. How can you protect yourself if you are attending a party this year?

Where is the Party?

When deciding if you will carry your firearm to the party, you must consider the location. Obviously, you cannot carry a firearm to a prohibited location just because you are attending a party being held there. For instance if you are going to a party with your children held at their school. Alternatively, if it is a work party, is it being held in a bar? Drinking while carrying is possible at home, or in a restaurant, but remember that even if you have a CWFL, you may not drink and carry a firearm in a bar, as firearms are not permitted in any establishment whose primary income is derived from the sale of alcohol for consumption on the premises. (If you are the bar owner or an employee, this may not apply to you. Learn more about bar owners and employees carrying at work, click here.)

What If You Are Going To Be Drinking?

Although we have made clear our belief that drinking and guns do not mix, we will now turn our attention to a discussion of Florida law. The law in Florida does allow you to drink and carry a firearm. However, Florida law prohibits you from using a firearm if you are under the influence of alcohol to the extent that your normal faculties are impaired. Using a firearm while or after consuming alcohol is not the same as drinking and carrying a firearm.

Using a firearm is defined in Florida Statute 790.151 which states:

to “use a firearm” means to discharge a firearm or to have a firearm readily accessible for immediate discharge. For the purposes of this section, “readily accessible for immediate discharge” means loaded and in a person’s hand.

Testing for Alcohol or Drug Use

While most people know the legal limit of alcohol in their blood is .08 for driving, many do not know that a legal limit exists for using a firearm. In Florida, it is illegal to use a firearm as defined above with a blood alcohol limit of .10 or higher. Just like if a police officer believes you have been drinking and driving, if an officers has probable cause to believe that you are impaired by alcohol and have used a firearm, they can require you to take a breath, urine, or in the case of death or serious bodily injury, a blood test.

Blood, Breath, and Urine Test results

In Florida, in most cases Blood, Breath, and Urine testing must be done subsequent to a lawful arrest. In the case of the use of a firearm there are three possible presumption created by the test. If you blood alcohol level is 0.00 up to and including 0.05, it is presumed that you were NOT under the influence of alcohol. From 0.05 – 0.099 neither side gets a presumption of impairment, but the State can put on evidence to show that you were in fact impaired. A result of 0.10 or above is prima facia evidence that you were impaired. Prima facia evidence is evidence that is accepted as correct unless you prove it was incorrect.

Further, if you refuse to take the requested test, your refusal is admissible as evidence that you were impaired. The prosecutor will be permitted to argue to a jury that you did not take the test, because you knew what the results would be and did not want the jury to know. It is also referred to as “consciousness of guilt.”

What If You Are Attacked?

As stated above, Florida law allows you to carry, but not to use your firearm if you are under the influence of alcohol. But what happens if you are attacked? Are you allowed to defend yourself? Must you allow yourself to be killed, just because you have been drinking?

Although the law does generally prohibit the use of a firearm while under the influence of alcohol or drugs, there is an exception. Florida Statute 790.151, the same statute we mentioned above, that makes it illegal to use a firearm while under the influence of alcohol, also provides us a safety net. In subsection five (5), the statutes says, “[t]his section does not apply to persons exercising lawful self-defense or defense of one’s property.” Therefore, we know that even if we are over the legal limit to use a firearm, in Florida we can still defend ourselves if we are in a situation that allows us to use deadly force.

David S. Katz

About Expert Firearm Attorney David Katz. David Katz is an Expert Firearm Attorney and has been practicing law for over 14 years. He began his career as a prosecutor in Seminole County, Florida.   There, he gained invaluable experience analyzing how...
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