NRS § 202.257 – Possession of a Firearm Under the Influence

In this article, our Las Vegas criminal defense attorneys discuss:

• 1. Is it a crime to carry a gun while drunk in Nevada?
• 2. Can I be forced to take a blood test?
• 3. What is the penalty under NRS 202.257?
• 4. Will I lose my gun?
• 5. How do I fight the charges?
• 6. Can the criminal record be sealed?

1. Is it a crime to carry a gun while drunk in Nevada?

2. Can I be forced to take a blood test?

Yes, people arrested for “carrying under the influence” in Nevada can be forced to take a blood test if:

1. they do not agree on their own to submit to an evidentiary test, and
2. the police officer has reasonable cause to believe that the suspect is or was handling a gun under the influence.²

Ordinarily, people arrested for carrying while under the influence in Nevada are given the choice to take an evidentiary breath test or an evidentiary blood test. However, arrestees suspected of drug use must submit to a blood test since breathalyzers cannot detect controlled substances.³

When arrestees refuse to take an evidentiary test, the police must then get a warrant or court order directing that reasonable force be used to the extent necessary to obtain the samples of blood from the arrestee. “Reasonable force” typically includes restraining the arrestee so that the phlebotomist can conduct a blood draw.⁴

3. What is the penalty under NRS 202.257?

Being intoxicated or having an illegal BAC while carrying or handling a gun is a misdemeanor in Nevada, carrying:

• Up to 6 months of jail time, and/or
• Up to $1,000 in fines

Suspects may also have to surrender their firearm if they handled it in a dangerous way.⁵

Note that this crime is a misdemeanor whether or not it is the defendant’s first offense or a successive offense. And any incarceration is served in county jail, not state prison.

4. Will I lose my gun?

People suspected of possessing a firearm under the influence in Nevada may have to forfeit their gun if they either:

• brandished the gun,
• aimed the gun, or
• otherwise handled the gun in a manner which endangered others or public health and safety.⁶

Merely handling the gun in a dangerous way is sufficient to warrant forfeiture. There does not need to be a discharging firearm. And it does not matter whether it is an unloaded or loaded firearm.

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 police officer 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 surrender the gun.

5. How do I fight the charges?

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. The available evidence determines which of the following four defenses may be the most effective:

1. 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 police 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 0.08% 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.
   
2. 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.
3. 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.
4. Lack of probable cause. Police may not place suspects under arrest unless they had probable cause to believe the suspect committed the crime in question. If the defense lawyer can demonstrate that the police lacked sufficient evidence to effectuate a lawful arrest, the entire case could be dropped.

6. Can the criminal record be sealed?

A conviction for carrying under the influence may be sealed one year after the case ends. But if the charge gets dismissed, the defendant can petition for a record seal immediately.⁷ Learn how to seal criminal records in Nevada.

Additional Reading…

See our related articles on Nevada Gun Storage Laws – What you need to know, open carry laws, concealed firearm / concealed weapon laws (NRS 202.350), how to get a concealed carry permit / CCW permit for handguns (NRS 202.3657), possession of dangerous weapon or deadly weapon on school property or child care facility (NRS 202.265), restraining order violations, gun background checks required before the sale of firearms, being a convicted felon in possession of a firearm (NRS 202.360), domestic violence, and machine gun laws.

For more information on California gun laws, read our article on California gun laws.

Legal References