Attorney Joseph Soler
What does it mean to operate a firearm while under the influence of alcohol or drugs?
It is illegal in Florida for any person who is under the influence of alcoholic beverages or controlled substances, when affected to the extent that his or her normal faculties are impaired, to use a firearm. This does not only apply to alcoholic beverages and illegal drugs, but also to controlled substances that the person may even have a prescription for, like Xanax, marijuana, or opiates.
What is the punishment for using a firearm while under the influence?
A violation is a second-degree misdemeanor punishable by up to 60 days of county jail.
What does it mean to “use a firearm”?
To “use a firearm” means to discharge a firearm or to have a firearm readily accessible for immediate discharge. It is not only illegal to shoot a gun while impaired, it is also illegal, if impaired, to have the gun “readily accessible for immediate discharge.”
What does “readily accessible for immediate discharge” mean?
Readily accessible for immediate discharge means that the gun is:
In your hand
How can they prove that I was under the influence?
Breath, urine, or blood tests
Observations of the officer
Observations of witnesses
Admissions by the person that they consumed alcohol, drugs, or prescription controlled substances
What if someone is hurt?
If the operation of the firearm caused death or serious bodily injury to a person, then law enforcement can use “reasonable force” to require a person to submit to a blood test.
Can I use a firearm if I am in danger?
Florida law says that, regardless of whether you have been using alcohol or drugs, you can use the firearm in:
Lawful self-defense, or
Defense of your property
It is illegal to point a gun at a person unless there is an imminent threat
Be aware that in order to use a firearm to defend yourself, or to defend another person, there has to be an imminent threat of bodily harm or it may be considered a criminal aggravated assault with a deadly weapon.
It is important to note that, in Florida, pointing a gun at another in self defense or the defense of others is considered "non-deadly force." Non-deadly force may be used when, and to the extent that, a person reasonably believes that the use of non-deadly force is necessary to defend himself or herself against the imminent use of unlawful force. In other words, if there is an imminent threat of unlawful force than it is not illegal to point a gun at a person.
However, if the gun goes off, either purposefully or inadvertently, then it is considered “deadly force.” In order to use deadly force, there has to be the threat of imminent death or great bodily harm.
What are some defenses to the charge of operating a firearm while under the influence of alcohol or drugs?
The defendant’s normal faculties were not impaired
The state needs to prove more than the person was simply drinking or taking drugs. Similar to a DUI prosecution, the state needs to prove that the person was under the influence to the extent that their normal faculties were impaired. Absent a breath, urine, or blood test, the prosecutor may have problems proving this.
The defendant was not “using” a firearm
If there are no witnesses or admissions made by the defendant, and law enforcement did not observe the defendant shooting the gun or with a loaded gun in their hand, then the state may not be able to prove the defendant used the firearm.
The firearm was used in self-defense or the defense of property
If one awakens at night to what sounds like someone breaking into their house it is not illegal, regardless if they have been drinking, for them to take along their gun while making sure there are no threats. It is also not illegal for a person, if they are intoxicated, to discharge a firearm in lawful self-defense.
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For more information about Florida gun law, please see our Florida Gun and Concealed Carry page here.