Possession of a Firearm While Intoxicated

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Possession of a Firearm While Intoxicated

Using weapons while intoxicated is a misdemeanor offense in Ohio that many alleged offenders are charged with in addition to other alleged criminal offenses. Even when this is an isolated charge, a conviction or guilty plea can still result in a lengthy jail sentence and a significant fine.

Oftentimes, people are charged with using weapons while intoxicated after having a blood alcohol concentration (BAC) above the legal limit of 0.08 during arrests for operating a vehicle under the influence of alcohol (OVI, but commonly referred to as driving under the influence or DUI, or driving while intoxicated or DWI in other jurisdictions). A person may be charged with using weapons while intoxicated even if he or she has a BAC under 0.08.

Ohio Possession of a Firearm While Intoxicated Attorney

If you were recently arrested for allegedly using a weapon while intoxicated anywhere in Montgomery County, it will be in your best interest to immediately seek legal representation. Joslyn Law Firm defends clients accused of all kinds of gun, weapon, and firearm offenses in Greene County, Clark County, Miami County, and Montgomery County.

Brian Joslyn is an experienced criminal defense attorney in Dayton who can fight to help you achieve the most favorable outcome to your case that results in the fewest possible penalties. He can review your case and answer all of your legal questions when you call (937) 356-3969 to schedule a free initial consultation.

Ohio Possession of a Firearm While Intoxicated Information Center

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Possession of a Firearm While Intoxicated Charges in Montgomery County

Under Ohio Revised Code § 2923.15, a person commits the crime of using weapons while intoxicated if he or she, while under the influence of alcohol or any drug of abuse, carries or uses any firearm or dangerous ordnance.

Ohio Revised Code § 2923.11(B)(1) defines a firearm as “any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant.” The term includes an unloaded firearm as well as any firearm that is inoperable but that can readily be rendered operable.

A dangerous ordnance is defined under Ohio Revised Code § 2923.11(K) as any of the following:

  • Any automatic or sawed-off firearm, zip-gun, or ballistic knife;
  • Any explosive device or incendiary device;
  • Nitroglycerin, nitrocellulose, nitrostarch, PETN, cyclonite, TNT, picric acid, and other high explosives; amatol, tritonal, tetrytol, pentolite, pecretol, cyclotol, and other high explosive compositions; plastic explosives; dynamite, blasting gelatin, gelatin dynamite, sensitized ammonium nitrate, liquid-oxygen blasting explosives, blasting powder, and other blasting agents; and any other explosive substance having sufficient brisance or power to be particularly suitable for use as a military explosive, or for use in mining, quarrying, excavating, or demolitions;
  • Any firearm, rocket launcher, mortar, artillery piece, grenade, mine, bomb, torpedo, or similar weapon, designed and manufactured for military purposes, and the ammunition for that weapon;
  • Any firearm muffler or suppressor; or
  • Any combination of parts that is intended by the owner for use in converting any firearm or other device into a dangerous ordnance.

Ohio Revised Code § 2923.11(K) establishes that a dangerous ordnance does not, however, include any of the following:

  • Any firearm, including a military weapon and the ammunition for that weapon, and regardless of its actual age, that employs a percussion cap or other obsolete ignition system, or that is designed and safe for use only with black powder;
  • Any pistol, rifle, or shotgun, designed or suitable for sporting purposes, including a military weapon as issued or as modified, and the ammunition for that weapon, unless the firearm is an automatic or sawed-off firearm;
  • Any cannon or other artillery piece that, regardless of its actual age, is of a type in accepted use prior to 1887, has no mechanical, hydraulic, pneumatic, or other system for absorbing recoil and returning the tube into battery without displacing the carriage, and is designed and safe for use only with black powder;
  • Black powder, priming quills, and percussion caps possessed and lawfully used to fire a cannon of a type defined in division (L)(3) of this section during displays, celebrations, organized matches or shoots, and target practice, and smokeless and black powder, primers, and percussion caps possessed and lawfully used as a propellant or ignition device in small-arms or small-arms ammunition; or
  • Dangerous ordnance that is inoperable or inert and cannot readily be rendered operable or activated, and that is kept as a trophy, souvenir, curio, or museum piece.

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Dayton Possession of a Firearm While Intoxicated Penalties

Using weapons while intoxicated is a first-degree misdemeanor. A conviction is punishable by up to 180 days in jail and/or a fine of up to $1,000.

Many alleged offenders face additional criminal charges, often as the result of routine traffic stops. In addition to the possible consequences listed above, a person could also face related penalties for the aforementioned OVI charges or maybe even another alleged weapon offense, such as carrying a concealed weapon without a permit, having a weapon under disability, or improper handling of a firearm in a motor vehicle.

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Using Weapons While Intoxicated Defenses

No matter how grim circumstances may look, there are defenses to every crime. Each defendant has a right to request a jury trial, confront the witnesses, and raise a reasonable doubt about their guilt. Defendants create reasonable doubt by using specific and strategic defenses. Solid defenses against this charge are below, but defendants should always speak with a Dayton, Ohio using weapons while intoxicated defense lawyer for best results.

Defective Equipment

The breathalyzer test equipment may be defective. Suppose the defendant believes the officers misused the equipment administering the test or that the equipment was malfunctioning. In that case, this can be grounds for the court to suppress the breathalyzer test results from being admitted into evidence. The police must administer two breathalyzer tests to demonstrate that the equipment is working. However, if the officer fails to do so or the BAC numbers are beyond acceptable margins apart, the court should not accept the result.

Improper Testing

It is standard for the police to administer various field sobriety tests when they suspect an individual is under the influence of alcohol. The accepted field sobriety tests comprise the horizontal gaze nystagmus test, one-legged stand test, and nine-step walk and turn test.

During the horizontal gaze nystagmus test, the arresting officer asks the suspect to follow the officer’s finger, pen, or other small objects. The suspect’s eyes aren’t supposed to skid, jerk, or stray from the direction of the object’s movement.

In the one-legged stand test, as the name suggests, the suspect must stand on one leg, showing their sobriety by demonstrating rigid balance for an extended period. Finally, the walk test requires the suspect to walk heel-to-toe along a straight line and turn around upon the officer’s direction.

The public often criticizes these tests because studies have shown that they are challenging for sober people to perform. Distractions, such as loud noise or a speeding car, may disrupt the person from following the instructions properly. Also, the testing officer may have been trained poorly or distracted themselves. Furthermore, the poor performance may not be because they’re drunk but because they’re confused about the officer’s instructions. Thus, there are ample grounds for an officer to challenge an accused’s sobriety based on these tests, but they are not all absolute indicators of intoxication.

Not A Dangerous Weapon

Although the state may uphold other charges if the defendant is intoxicated in public or drunk driving, it would likely dismiss this charge if the defendant can prove they didn’t have a dangerous weapon or firearm. For example, suppose the defendant only wanted others to think they had a dangerous weapon. In reality, the defendant only had a prop gun, toy gun, or antiquated gun that couldn’t shoot. With a weapon that can’t injure someone and which otherwise doesn’t fit the definition of a dangerous weapon, the defendant couldn’t have violated this statute. Prop knives and other forms of unusable toy weapons should also permit the dismissal of this offense.

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Additional Resources

National Rifle Association Institute for Legislative Action (NRA-ILA) | Ohio Gun Laws — The ILA is the lobbying arm of the NRA, committed to preserving the right of all law-abiding individuals to purchase, possess, and use firearms for legitimate purposes. On this website, you can find an overview of gun laws in Ohio and view a concealed carry reciprocity map of the United States that show which states recognize Ohio permits and which state’s permits Ohio recognizes. You can also read about recent news and laws on purchase, possession, and carrying of firearms in Ohio.

State v. Tite, 2013-Ohio-1361 — Robert Tite entered a no contest plea to carrying a concealed weapon and using weapons while intoxicated pursuant to a plea agreement in which the state agreed to dismiss the remaining charges (drug paraphernalia, possession of marijuana, possession of shotgun shells, and hunting without wearing hunter orange) and recommend a favorable sentence. Tite subsequently appealed his sentence, arguing that the trial court erred in finding him guilty and that the two offenses for which he was found guilty should have merged for purposes of sentencing, but the state re-filed the four charges that were dismissed pursuant to the plea agreement upon learning of Tite’s intended appeal. Tite filed a motion to dismiss, arguing that the plea agreement precluded the state from prosecuting him, but the trial court denied his motion after agreeing with the state that it was no longer bound by the plea agreement because Tite breached it by appealing his sentence. At a jury trial, Tite was found guilty of each of the offenses and sentenced to an aggregate of 150 days in jail plus fines and court costs. The Sixth District Court of Appeals reversed the judgment of the Norwalk Municipal Court and vacated the convictions and sentence, concluding:

Clearly, in exchange for Tite’s no contest plea, the state agreed to dismiss all charges against Tite except the carrying a concealed weapon and using weapons while intoxicated charges. The state failed to discuss any additional requirement that Tite was to forgo his right to appeal. Further, the fact that the plea agreement would be revoked if Tite exercised his right to appeal was never mentioned.

Consequently, we find no support for the state’s argument that Tite breached the plea agreement when he appealed his initial sentence. On the contrary, Tite fulfilled his obligations under the plea agreement by pleading no contest to the carrying a concealed weapon charge and the using weapons while intoxicated charge. Since Tite’s appellate rights were not a subject of the plea agreement, his appeal of the convictions had no affect on the state’s promise to dismiss the remaining charges. See State v. Legree, 61 Ohio App.3d 568, 573 N.E.2d 687 (6th Dist.1988) (holding that a plea agreement is not breached when a party fails to fulfill an alleged promise that is not part of the record). When the state re-filed those charges, it violated the terms of the plea agreement. Since the state breached the plea agreement, the trial court abused its discretion when it denied Tite’s motion to dismiss.

Ohio Revised Code Section 2923.15 – This Ohio website provides information regarding the legal definition of using a weapon while intoxicated.

Southwest General Addiction Services – This Ohio website provides information regarding a substance use treatment program in Ohio.

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Ohio Possession of a Firearm While Intoxicated Lawyer | Joslyn Law Firm

Were you arrested in the Miami Valley area for allegedly using a weapon while intoxicated? Do not say anything to authorities without legal counsel. Contact Joslyn Law Firm as soon as possible.

Dayton criminal defense lawyer Brian Joslyn represents individuals all over the greater Montgomery County area, including Beavercreek, Dayton, Fairborn, Huber Heights, Kettering, Piqua, Springfield, Troy, and several other nearby communities. Call (937) 356-3969 or submit an online contact form to have our attorney provide a complete evaluation of your case during a free, confidential consultation.

We also assist with improper handling of a firearm cases.

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