NRS § 202.257 – Possession of a Firearm Under the Influence

In this article, our Las Vegas criminal defense attorneys discuss the following topics re. drunk or drugged firearm possession:

• 1. Elements
• 2. Breath or Blood Test
• 3. Penalties
• 4. Will I lose my gun?
• 5. Defenses
• 6. Record Seals
• Additional Reading
• Additional Resources

1. Elements

For you to be convicted in Nevada of violating NRS 202.257, prosecutors must prove beyond a reasonable doubt the following two elements of the jury instructions:

1. You had a firearm in your actual physical possession (such as carrying or holding the gun); AND
2. One of the following is true:
   • You had a blood alcohol content (BAC) of 0.08% or higher, or
   • You were impaired because you ingested, inhaled, applied, or otherwise used too much alcohol, controlled substances, prescription drugs, over-the-counter drugs, or another substance to operate a gun responsibly.¹

2. Breath or Blood Test

If you are arrested for “carrying under the influence” in Nevada, the police will give you the choice to take a breath test or blood test. Though if the police suspect drug use, you must take the blood test since breath tests do not detect drugs.²

If you refuse the breath or blood test, police can get a warrant allowing them to use “reasonable force” to restrain you to draw blood.³

3. Penalties

Being intoxicated or having an illegal BAC while carrying or handling a gun is a misdemeanor in Nevada. The sentence includes:

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

You may also have to surrender your firearm if you handled it in a dangerous way.⁴

Note that this crime is a misdemeanor whether or not it is your first offense or a successive offense. Unlike with DUI, drunk firearm possession does not carry harsher punishments with each conviction.

4. Will I lose my gun?

If you are convicted of possessing a firearm under the influence in Nevada, you may have to forfeit your gun if you either:

• Brandished the gun,
• Aimed the gun, or
• Otherwise handled the gun in a manner that endangered others or public health and safety.⁵

Merely handling the gun in a dangerous way is sufficient to warrant forfeiture. There does not need to be a discharging firearm. Also, 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.

If both Tom and Tim are convicted of violating NRS 202.257, odds are Tom gets to keep the gun because he never used it in a dangerous manner. However, 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. Defenses

Here at Las Vegas Defense Group, we have represented literally thousands of people charged with weapons crimes such as carrying a firearm under the influence of alcohol or drugs. In our experience, the following four defenses have proven very effective with prosecutors and judges.

1. Your BAC was legal, and you were 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. Or perhaps the police were mistaken about you being impaired. As long as the D.A. cannot prove beyond a reasonable doubt that you had a BAC of at least 0.08% or were too compromised to handle firearms, the charge should be dismissed.
   
2. You were not in actual physical possession of the gun. NRS 202.257 only applies if you held, carried, or had a gun within your immediate control (such as in your car while driving). There was no “actual physical possession” if someone other than you had sole control of the gun or if the gun was in another room. If we can show that the gun in question was outside your actual physical possession, the case should be dropped.
3. You were acting in self-defense in your home. Nevada law permits you to handle a gun for self-defense in your personal residence even if you are inebriated. Therefore if we can show that you were facing a threat of immediate bodily harm and were using the gun as a reasonable form of self-defense in your home, the judge should throw out the case.
4. The police lacked probable cause to arrest you. Police may not place you under arrest unless they had probable cause to believe you committed the crime in question. If we can demonstrate that the police lacked sufficient evidence to make a lawful arrest, the entire case could be dropped.

6. Record Seals

A Nevada conviction for carrying a gun under the influence may be sealed one year after the case ends. Though if the charge gets dismissed, you can petition for a record seal immediately.⁶

Learn how to seal criminal records in Nevada.

Handling a gun with a BAC of 0.08% or higher is per se illegal in Nevada.

Additional Reading

See our related firearm-related articles on:

• Background checks – What you need to reveal before buying a gun.
• Being a convicted felon in possession of a firearm – The penalties for having a gun if you are a felon.
• Concealed firearm laws – The rules for how and where you can conceal carry firearms.
• Domestic violence – Even a misdemeanor conviction strips you of gun rights.
• Gun possession on school property or a child care facility – The penalties for having firearms near children.
• Gun storage laws – What Nevada law requires to safely store firearms.
• How to get a CCW permit – A guide for getting a permit to conceal carry in Nevada.
• Machine gun laws – The rules for lawfully possessing an automatic weapon.
• Open carry laws – Guide to where you may openly carry guns in Nevada.
• Restraining order violations – The penalties for violating an extended restraining order by possessing a firearm.

Additional Resources

If you are struggling with alcoholism or substance abuse addiction, you can find help here:

• Alcoholics Anonymous (AA) – A 12-step program to overcome alcohol addiction.
• Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
• Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
• Recovery Centers of America – Treatment centers in seven states.
• SMART Recovery – Group therapy for young people struggling with addiction.
• Partnership to End Addiction – Information on how to find drug addiction treatment.

Legal References