Nevada firearm laws prohibit people from physically possessing guns while:
- they have a blood alcohol content (BAC) of .1 or more, OR
- they are too impaired by alcohol, drugs, or another substance to safely handle a gun
As with Nevada DUI law, people suspected of possessing guns while under the influence are required to take a breath or blood test.
Three common defenses to charges of violating NRS 202.257 in Nevada include:
- The breath or blood testing equipment was faulty or wrongly administered;
- The defendant was not in actual physical possession of the gun;
- The defendant was in his home and possessed the firearm solely to act in compliance with Nevada self-defense laws
Having a firearm under the influence is a misdemeanor in Nevada, carrying a maximum of:
- 6 months in jail, and/or
- $1,000 in fines
And if the court finds that the defendant's behavior endangered others, the state can forfeit the gun.
Several lawful activities such as driving a car or a boat become a crime in Nevada if the driver is intoxicated. This rule also applies to carrying or holding a gun. Specifically, it is illegal in Nevada for a person to have in his or her actual physical possession any firearm if either of the following is true:
- The person has a BAC of .1 or higher, OR
- The person has ingested, inhaled, applied, or otherwise used too much alcohol, controlled substances, or another substance to operate a gun responsibly
In short, it is against Nevada law for someone to have physical control of a gun with a BAC of at least .1 or while impaired from alcohol, drugs, or other compounds. It does not matter whether the drugs are illegal, prescription, or over-the-counter. And people who are arrested for this offense are legally required to take a breath or blood test.1
Note that someone with a low BAC can still be criminally liable for possessing a gun as long as he/she is impaired by alcohol, drugs, or another substance. Conversely, someone with a high BAC can still be criminally liable even if they are unimpaired. Mesquite criminal defense attorney Michael Becker gives an example:
Example: Jim, Jack, and John are camping out near Red Rock. Jim never drinks, but after dinner he has a beer. Jack is a seasoned drinker and downs several beers. Meanwhile, John develops a migraine and takes four Motrin. A Las Vegas Metropolitan Police officer drives by and spies the three men target-shooting. When he notices Jim and John struggling to keep their balance and smells alcohol on Jack, he arrests them and has them submit to blood tests. Jim has a BAC of .04, Jack has a BAC of .12, and John has a BAC of .0. Ultimately they are all jailed at the Clark County Detention Center.
In the above example, all three men may be convicted in Nevada of physically possessing a gun while impaired or with an illegal BAC. Even though Jim's BAC is less than .1, he is acting inebriated from the beer due to not being an experienced drinker. Even though Jack can hold his liquor and is not inebriated, his BAC is above the legal .1 limit. And even though Jack hasn't drank at all, he is impaired from taking too many pain-killers.
Also note that the .1 BAC threshold for NRS 202.257 is higher than that for Nevada DUI laws, which is .08. Therefore, someone with a BAC of at least .08 but less than .1 may not legally drive but can legally handle a gun as long (as he/she is not otherwise impaired).
In crafting a defense strategy for charges of carrying a gun under the influence in Nevada, the defendant's attorney would scrutinize all the facts of his/her particular case. A case's facts and available evidence determine which of the following three defenses may be the most effective:
- Legal BAC and not impaired: Perhaps the breath- or blood-testing equipment the police used was defective. Or perhaps the person who operated the equipment was not licensed or failed to follow proper protocol. And perhaps the cops were mistaken about the defendant being impaired. Either way, the D.A. has the burden to prove beyond a reasonable doubt that the defendant had a BAC of at least .1 or was too compromised to handle firearms. If the defense attorney can show that the D.A. lacks sufficient proof, the charge should be dismissed.
- No actual physical possession: NRS 202.257 only applies to people who are holding a gun, carrying a gun, or have the gun within their immediate control (such as in their car while driving). There is no "actual physical possession" if someone other than the defendant had sole control of the gun or if the gun was in another room. If the defense attorney can show that the gun in question was outside the defendant's actual physical possession, the case should be dropped.
- Self-defense in the home: Nevada law permits an inebriated person to handle a gun for self-defense purposes in his/her personal residence. Therefore if the defense attorney can show that the defendant was facing a threat of immediate bodily harm and was using the gun as a reasonable form of self-defense in his/her home, the judge should throw out the case.
Possessing a firearm while under the influence of drugs or alcohol or with a BAC of .1 or more is a misdemeanor in Nevada. The penalty includes:
- up to 6 months in jail, and/or
- up to $1,000 in fines
In addition, the state may forfeit (take ownership of) the defendant's gun if the defendant brandished, aimed, or otherwise handled the gun in a manner that endangered others. Mesquite criminal defense attorney Neil Shouse provides an illustration of how this can happen:
Example: Tom and Tim leave the Green Valley Ranch inebriated. Tom keeps his hands in his pockets and never touches the gun in his holster. Meanwhile Tim keeps his gun in his hand while waving his arms to keep his balance. A cop then books them at the Henderson Detention Center for actual physical possession of a gun while impaired.
If both Tom and Tim in the above example are convicted, odds are Tom gets to keep the gun because he never used the gun in a dangerous manner. But since Tim kept hold of the gun while waving his hands and therefore risking a bullet hitting someone else, he may have to forfeit the gun.
Arrested? Call a lawyer...
Arrested for "possessing a gun while under the influence" in Nevada? Call 702-DEFENSE (702-333-3673) for a FREE consultation. Our Las Vegas criminal defense attorneys may be able to resolve the case without a trial and get back your guns.
For more information on California gun laws, read our article on California gun laws.
1 NRS 202.257 Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.
1. It is unlawful for a person who:
(a) Has a concentration of alcohol of 0.10 or more in his or her blood or breath; or
(b) Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him or her incapable of safely exercising actual physical control of a firearm,
--> to have in his or her actual physical possession any firearm. This prohibition does not apply to the actual physical possession of a firearm by a person who was within the person's personal residence and had the firearm in his or her possession solely for self-defense.
2. Any evidentiary test to determine whether a person has violated the provisions of subsection 1 must be administered in the same manner as an evidentiary test that is administered pursuant to NRS 484C.160 to 484C.250, inclusive, except that submission to the evidentiary test is required of any person who is directed by a police officer to submit to the test. If a person to be tested fails to submit to a required test as directed by a police officer, the officer may direct that reasonable force be used to the extent necessary to obtain the samples of blood from the person to be tested, if the officer has reasonable cause to believe that the person to be tested was in violation of this section.
3. Any person who violates the provisions of subsection 1 is guilty of a misdemeanor.
4. A firearm is subject to forfeiture pursuant to NRS 179.1156 to 179.119, inclusive, only if, during the violation of subsection 1, the firearm is brandished, aimed or otherwise handled by the person in a manner which endangered others.
5. As used in this section, the phrase “concentration of alcohol of 0.10 or more in his or her blood or breath” means 0.10 gram or more of alcohol per 100 milliliters of the blood of a person or per 210 liters of his or her breath.