Carry under legal BAC?

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Carry under legal BAC?

Postby Jammaster » Sat, 08 Oct 2011 00:23:26

Hello all. I have searched every where for this but cant seem to find a direct answer. I know under the new law you can carry where alcohol is served; however I want to know if it is legal to carry in VA if you are under the legal BAC limit (.08)? No I do NOT think it is wise to carry while intoxicated; however if I had a beer or two and am under the legal limit for driving I do not see why it would be any different for guns considering a vehicle is a wayy bigger bullet than anything a gun produces. So can you legally carry a gun in VA under .08 BAC? Thanks.


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Re: Carry under legal BAC?

Postby Tweaker » Sat, 08 Oct 2011 08:29:13

This topic has been beaten to death on here and elsewhere. Your post covers most all possible angles and it is one I agree with wholeheartedly.

Prepare your anus for attacks levied against you for "harming the cause" and "representing gun owner's in a poor light."

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Re: Carry under legal BAC?

Postby OakRidgeStars » Sat, 08 Oct 2011 12:16:03

The terms you should be concerned about are "intoxicated" and "impaired". A police officer can decide that you fall into one of those categories regardless of your BAC level.

If that should happen while you are carrying, then you may find yourself either detained or arrested. These things tend to get sorted out in front of a judge, but that won't spare you from a ride in the back of the Crown Vic.


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Re: Carry under legal BAC?

Postby Jammaster » Sat, 08 Oct 2011 17:00:00

Thanks for the replies. Yes I was well aware this question could very well spark conflict, but once again all I wanted to know is if it was legal to carry under legal BAC. Not a objective answer just the facts. Sorry I didnt search more but I really didnt find it so I figured that's what forums are for. Everyone has their opinions about their own moral beliefs in regards to guns and I hope my question did not cast a negative light about us law abiding gun owners. If Someone where not responsible they would not care if they were over the legal BAC and carry regardless.

So to confirm this original ? the answer is yes it is legal to carry under .08 BAC? Again thanks.


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Re: Carry under legal BAC?

Postby Jammaster » Sat, 08 Oct 2011 17:57:30

Not a objective answer just the facts.

Sorry wrong jective. Meant subjective :bangin:


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Re: Carry under legal BAC?

Postby totes6 » Mon, 10 Oct 2011 10:23:30

If you want a legal opinion you need to talk with a lawyer. Most of us here are not lawyers, ( IANAL=I am NOT a Lawyer, tends to litter the posts around here) and thus cannot give you a legal opinion. We can only give you our opinion. And I think OakRidgeStars hit the nail on the head. Most police offices these days rather let the lawyers and judges sort things out, rather putting their necks out and making decisions on their own. So if you are involved in any interaction with police and you have had even one drink, the most likely response is that the officer is going to slap cuffs on you and take you in front of a judge. And unfortunately even here in Virginia there is no guarantee that the judge will side with you.

So my opinion is if you want to risk it, that is your choice. Just be prepared for the possible consequences. And get yourself a good lawyer on retainer to come bail you out of jail at 2am.

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Re: Carry under legal BAC?

Postby Tweaker » Mon, 10 Oct 2011 19:12:41

And by "have an interaction with police," I will speak from experience that this does not include engaging in friendly conversations with uniformed officers while both OC'ing and openly carrying a holstered firearm, because I have done so on several occasions.

Insert needed "beer drinkin' smilie"
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Re: Carry under legal BAC?

Postby allingeneral » Tue, 11 Oct 2011 14:34:30

Agree - beer drinking smiley needed. Added to the "To do list".

OakRidgeStars is exactly right in his response (though, IANAL). The legal definitions of intoxicated and impaired are separate and distinct. It is not cut and dried legal to carry with a BAC under .08. It is only legal to carry unimpaired by alcohol.
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Re: Carry under legal BAC?

Postby TenchCoxe » Wed, 12 Oct 2011 13:31:12

If you have a CHP and are found to be "under the influence of alcohol or illegal drugs while carrying" your handgun "in a public place" is a Class 1 misdemeanor and results in your CHP being revoked. Virginia Code § 18.2-308 J1.

What the legal BAC limit does is create a legal presumption that you are legally "under the influence." It does NOT mean that if you're below that level, you are NOT "under the influence." You certainly can blow less than a 0.08, but nevertheless be found to be "under the influence" and therefore guilty of the crime.

On a side note, I'm not finding a statute making it illegal to carry OPENLY while intoxicated - just concealed. Hmm....

It is illegal, however, to hunt while intoxicated. Va. Code § 18.2-285.

Anyhow, the general point is don't assume that just because you're below "the legal BAC limit", you're automatically "legal" and can't be found to be carrying while intoxicated.

My personal policy is that I don't drink any alcohol while I'm packing. Same thing for using my woodworking machinery. When I come in at the end of the day and crack a beer, I always say "shop's closed!" Just seems prudent to me, but of course, your mileage may vary (YMMV).
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Re: Carry under legal BAC?

Postby ultraghostrider » Mon, 17 Oct 2011 15:53:16

New to weapons carry. I logged in for the first time. Good questions here for someone who don't know like me. Can I wear my gun to a bar or restaurant or any stores for that matter? I feel weird to stroll in say K-Mart with my gun on my side. I do not have conceal yet so I would have to show it.

What happens if I am wearing a jacket that shows the weapon when button and say unbotton it lays over the weapon at hip on belt not trying to conceal it but, at moment not seen. Is that unlawful? BTW not new to shooting just owning. Army vet. :machinegun: :machinegun:


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Re: Carry under legal BAC?

Postby TenchCoxe » Mon, 17 Oct 2011 16:21:52

Welcome aboard!

If you don't have a concealed carry permit, but you want to carry, you must carry openly. You can carry openly in stores and restaurants, even where alcohol is served. However, as those facilities essentially are private property, if the property owner asks you to leave because they don't want guns there, you have to leave. If you remain, you are trespassing. Best thing to do is simply gracefully exit.

In order to be carried "openly," your gun must not be "hidden from common observation." This means it cannot be "of such deceptive appearance as to disguise the weapon's true nature." If your jacket covers it so that a person might see a bulge, but not be able to discern that it is a gun, it would be concealed, and therefore illegal unless you have a CHP.

There are several reported Virginia cases regarding what "hidden from common observation" means. The basic idea is that if it can't be seen, or if it can be seen, but a person who sees it would be unable to discern that it is a gun, it is considered to be "hidden from common observation."

In the "real world," if it is momentarily "concealed" for a second as you take your jacket on or off, I'm guessing that shouldn't create an issue. But if you walk around with the jacket covering it up, that likely would be considered to be concealed, requiring a permit.

There's a lot to consider when carrying a gun at all, and IMHO, even more to consider when carrying openly - but I don't want to start the whole bloody OC/non-OC debate here again! :roll:
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Re: Carry under legal BAC?

Postby Tazguy04 » Mon, 17 Oct 2011 16:36:43

I had the same concern over OC while having a beer or two with friends, my soulution was to have the DD carry his gun , most of my friends carry so its not hard to find a DD that does carry . Hope this helps

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Re: Carry under legal BAC?

Postby lizjimbo » Tue, 31 Jul 2012 12:07:20

The law in Virginia is you may not be intoxicated while in possession of a firearm. The word intoxicated is a subjective term and is always defined by LEO. Anyone carrying a firearm while intoxicated is going to present a serious threat to public safety. Intoxicated is never defined with a BAC. People are not charged with driving while intoxicated anymore, they are charged with driving under the influence. "Under the Influence" is defined by a BAC of .08. At that level the law says you are under the influence. Intoxication on the other hand can mean anything LEO wants it to mean. Intoxication is any amount of substance that can be intoxicating. One beer is intoxicating...maybe not drunk. The entire purpose of drugs, regardless of the amount used...yes beer is a drug...is to cause intoxication. There is no other purpose. So if you want to be intoxicated while armed don't do anything that will put you on LEO radar.


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Re: Carry under legal BAC?

Postby jdonovan » Tue, 31 Jul 2012 13:44:28

9 month old thread... I suppose better late than never, right?


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Re: Carry under legal BAC?

Postby big444man » Sun, 30 Jun 2013 12:52:41

§18.2-308. Personal protection; carrying concealed weapons; when lawful to carry.

J3. No person who carries a concealed handgun onto the premises of any restaurant or club as defined in §4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Board under Title 4.1 of the Code of Virginia may consume an alcoholic beverage while on the premises. A person who carries a concealed handgun onto the premises of such a restaurant or club and consumes alcoholic beverages is guilty of a Class 2 misdemeanor.
However, nothing in this subsection shall apply to a federal, state, or local law-enforcement officer. :confused:
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Re: Carry under legal BAC?

Postby lizjimbo » Mon, 14 Oct 2013 16:42:24

So udon what are you doing here?

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Re: Carry under legal BAC?

Postby cham89 » Fri, 01 Nov 2013 09:59:47

TenchCoxe wrote:If you have a CHP and are found to be "under the influence of alcohol or illegal drugs while carrying" your handgun "in a public place" is a Class 1 misdemeanor and results in your CHP being revoked. Virginia Code § 18.2-308 J1.

What the legal BAC limit does is create a legal presumption that you are legally "under the influence." It does NOT mean that if you're below that level, you are NOT "under the influence." You certainly can blow less than a 0.08, but nevertheless be found to be "under the influence" and therefore guilty of the crime.

On a side note, I'm not finding a statute making it illegal to carry OPENLY while intoxicated - just concealed. Hmm....


This is just my view of the way this is worded, but the way I understand it is that this states that anyone who is has a permit to carry a concealed handgun and is under the influence while carrying can get hit for this, meaning even if you are openly carrying at the time, the fact that you possess a CHP puts you into this category. Much like how most states have lower BAC limits for CDL drivers, and the lower limit applies to them all the time whether their driving a commercial vehicle or their own personal car.


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Re: Carry under legal BAC?

Postby Remek » Fri, 01 Nov 2013 10:20:27

cham89 wrote:
TenchCoxe wrote:If you have a CHP and are found to be "under the influence of alcohol or illegal drugs while carrying" your handgun "in a public place" is a Class 1 misdemeanor and results in your CHP being revoked. Virginia Code § 18.2-308 J1.

What the legal BAC limit does is create a legal presumption that you are legally "under the influence." It does NOT mean that if you're below that level, you are NOT "under the influence." You certainly can blow less than a 0.08, but nevertheless be found to be "under the influence" and therefore guilty of the crime.

On a side note, I'm not finding a statute making it illegal to carry OPENLY while intoxicated - just concealed. Hmm....


This is just my view of the way this is worded, but the way I understand it is that this states that anyone who is has a permit to carry a concealed handgun and is under the influence while carrying can get hit for this, meaning even if you are openly carrying at the time, the fact that you possess a CHP puts you into this category. Much like how most states have lower BAC limits for CDL drivers, and the lower limit applies to them all the time whether their driving a commercial vehicle or their own personal car.


No, I do not like to correct, but I have to here. Your assumption that "carry" refers to any form of carry is an incorrect interpretation. You cannot read the phrase, in isolation of the sentence or section section it is contained within. That would mean all phrases and partial sentences in law are absolutes.

It was written in the context of carrying concealed, as it is part of that section. Why then, would they be referring to non-concealed carry without actually stating "non-concealed carry"???? It simply makes no sense, and not something that any court would reasonably uphold without something more.

Next, here is the full sentence:

"Any person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor."

When read in context of the laws being discussed, this is clearly referring to "such handgun", the antecedent basis meaning the previously-mentioned "concealed handgun".

Lastly, Concealed carriers do not lose other rights because they choose to have the option to carry concealed, how does that make any sense?
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Re: Carry under legal BAC?

Postby cham89 » Fri, 01 Nov 2013 11:49:41

Just the way I read it.

Either way the whole situation is easily avoided by just not drinking while carrying.

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Re: Carry under legal BAC?

Postby Stratojaxter » Fri, 01 Nov 2013 12:21:06

cham89 wrote:Just the way I read it.

Either way the whole situation is easily avoided by just not drinking while carrying.

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I refuse to allow myself to become intoxicated, and with rare exceptions I don't drink in bars anymore, but I do enjoy an occasional drink or two. Should I have to become a victim in order to toast a friend's promotion, have a beer while watching a football game with a neighbor, or enjoy a drink with dinner before going for a walk downtown? If you have self control, you can drink and carry just fine.


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