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Ohio v Weber - Using a weapon while intoxicated


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#1 Euler

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Posted 21 November 2019 - 10:42 PM

AP News

The Ohio Supreme Court will hear arguments in February [2020] to decide whether a law prohibiting gun owners from carrying firearms while intoxicated should be applied inside a gun owner's home.

Lawyers for a Clermont County man arrested in 2018 after he acknowledged having an unloaded shotgun while drunk say the law is unconstitutional when applied to homeowners.

They say a person's sobriety or intoxication level should have nothing to do with possessing a weapon "in the hearth and home."

Gun control advocates argue the safety of Ohio residents and responding police officers would be jeopardized if the court overturned the arrest.

The court has scheduled oral arguments for Feb. 25. A decision isn't expected for months.


Ohio v Weber, State appellate decision

...
Around 4:00 a.m. on February 17, 2018, a deputy and a sergeant from the Clermont County Sheriff's Office were dispatched to appellant's home following the 9-1-1 call of his wife reporting that appellant was in possession of a firearm and intoxicated. When the officers arrived at the scene, appellant's wife advised them that everything was alright as appellant had put the firearm away. The deputy asked her if they could enter the home and she escorted them inside. Once inside, the officers observed appellant coming out of a doorway, holding a shotgun by the stock with the barrel pointed down. Appellant told the officers that the shotgun was unloaded and that he was unloading it to wipe it down. The officers took possession of the shotgun and confirmed it was unloaded. The officers did not observe any ammunition for the shotgun.

While interacting with appellant, the deputy detected the odor of an alcoholic beverage on appellant's person. Appellant's eyes were bloodshot and glassy, his speech
was slurred, and he was unsteady on his feet. Appellant was unable to complete a field sobriety test because he could not follow directions. Furthermore, he was swaying while standing in the instruction position. Appellant stated several times that he was drunk. The officers described appellant as "very intoxicated," "very impaired," and "highly intoxicated."
...
Appellant was convicted of violating R.C. 2923.15(A) which provides, "No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance." Whoever violates the statute is "guilty of using weapons while intoxicated[.]" R.C. 2923.15(B). "'Firearm' means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. 'Firearm' includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable." R.C. 2923.11(B).
...
R.C. 2923.15 does not, as suggested by appellant, criminalize the mere presence of a firearm in the home of an intoxicated person. Nor does the statute, as suggested by appellant, prohibit a person from carrying or using a firearm after consuming alcoholic beverages. Rather, the statute only prohibits the use or carrying of a firearm by a person who has imbibed to the point of intoxication.
...


For comparison, 430 ILCS 65 (FOID Act) is silent on intoxicating substances, but 430 ILCS 66 (FCC Act) doesn't specify where intoxication is prohibited.

Edited by Euler, 21 November 2019 - 10:53 PM.

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#2 TomKoz

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Posted 22 November 2019 - 01:02 AM

How many Law Enforcement officers out there drink beyond .08?

If this sticks, all should loose their firearms, their jobs, and their freedom !! ??

Sure seems like more ways to try and disarm the public.
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#3 Flynn

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Posted 22 November 2019 - 01:47 AM

How many Law Enforcement officers out there drink beyond .08?

If this sticks, all should loose their firearms, their jobs, and their freedom !! ??

Sure seems like more ways to try and disarm the public.

 

I glanced over the law in question, I could not find any BAC levels defined in regards to "under the influence of alcohol or any drug of abuse" in a residence or whatever location, in a vehicle the law references the vehicle code legal alcohol limit and also forbids firearm carrying with open alcohol but I could not find any qualitative BAC value in reference to carrying/possesing firearms inside your residence.  I believe that is why there is such a detailed description of what the police observed in the complaint to satisfy the "under the influence of alcohol" text of the law and that vagueness alone sould raise a real constitutional issue.


Edited by Flynn, 22 November 2019 - 01:49 AM.

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#4 Bo69

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Posted 22 November 2019 - 05:17 AM

Eddie Johnson does.

#5 press1280

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Posted 23 November 2019 - 08:29 AM

Statute seems rather vague. "Using" a weapon can mean anything. If it's terrorizing or threatening others, then fine, but "using" it seems like one could be arrested for carrying in a holster while intoxicated (in their own home) and doing nothing more than watching TV.



#6 Flynn

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Posted 23 November 2019 - 04:20 PM

Statute seems rather vague. "Using" a weapon can mean anything. If it's terrorizing or threatening others, then fine, but "using" it seems like one could be arrested for carrying in a holster while intoxicated (in their own home) and doing nothing more than watching TV.

 

IMO it's even more vague than that.  The statue doens't say "intoxicated" it says "under the influence of alcohol" without a defined threshold (I didn't see one when I glanced over the law) what is "under the influence"?  A glass of wine even if you only took a few sips with dinner could technically get you arrested in your own house if you touched a gun or were carrying because it could be argued that you were "under the influence of alcohol" as science would suggest that even very small amounts of alcohol does influence you.

 

IMO they should prevail due to vagueness of the law alone.


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#7 Bird76Mojo

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Posted 24 November 2019 - 01:59 PM

If this goes the same route as the DUI laws in Illinois (simply having access to keys of a vehicle while intoxicated is enough to arrest you for DUI) then we're in for some serious nonsense..

"He had access to those guns, and he was drunk! OH THE HUMANITY!"


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#8 Flynn

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Posted 24 November 2019 - 03:22 PM

If this goes the same route as the DUI laws in Illinois (simply having access to keys of a vehicle while intoxicated is enough to arrest you for DUI) then we're in for some serious nonsense..

"He had access to those guns, and he was drunk! OH THE HUMANITY!"

 

That is not too outragious, in my case one of the other defendants was charged with proxy possession of my firearm and each bullet in the magazine (both found in my desk) with the prosecutor claiming possession by proxy because the other defendant had access to the building and at the time was a prohibited person.  Those proxy charges were eventually dropped in a plea (so we will never know if they would have stuck) but regardess they were levied and required a defense.


Edited by Flynn, 24 November 2019 - 03:24 PM.

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#9 SiliconSorcerer

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Posted 25 November 2019 - 12:32 PM

Using ..., I'm not sure your "using" a firearm when carrying it but I don't want to go down the philosophical path here. 

 

I do actually shoot a firearm in the house, however what someone does in their home is their own business.  

If they want to screw a willing goat or drink beer and shoot clays in their basement (or somehow else die), have at it. 

 

Your home is your castle. 


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#10 Plinkermostly

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Posted 26 November 2019 - 07:50 AM

Provided you avoid large sodas.



#11 geo.ulrich

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Posted 26 November 2019 - 05:51 PM

And the goat is of legal age  :hairy:


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