Possession of Firearms Under The Influence of Marijuana – NRS 202.257
NRS 202.257 governs the provisions for an offender who is considered to be in possession of a firearm when under influence of alcohol, controlled substance or other intoxicating substance.
To be charged with this violation, an offender must unlawfully have a concentration of alcohol of 0.10 or more in his or her blood or breath; or be under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance.
An offender is also in violation of this statute if the person 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.
The final element which must be proved is that the offender has or has had 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.
Evidentiary tests (breath or blood draws) to determine whether a person has violated the provisions of NRS 202.257 must be administered in the same manner as prescribed in DUI investigations. 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 statute.
Note that someone with a low BAC can still be criminally liable for possessing a gun as long as he or she is impaired by alcohol, drugs, or another substance. Likewise, someone with a high BAC can still be criminally liable even if they are unimpaired.
For example, Tom, Richard and Harry are camping out near Red Rock Conservation Area. Tom is not a drinker but decides to have one beer following their meal. Richard, who is a regular drinker, consumes several beers. Harry, does not drink but had a terrible toothache and ingests legally prescribed codeine. A Las Vegas Metropolitan Police officer drives by and notices that the three men are target-shooting. The officer notices Tom and Richard struggling to keep their balance and thinks he smells alcohol on Harry and arrests all three men. The officer has the men submit to blood tests. Tom has a BAC of .04, Richard has a BAC of .12, and Harry has a BAC of .0. The officer ultimately transports the men and books them into jail.
It is possible that all three men may be convicted in Nevada of physically possessing a gun while impaired or with an illegal BAC.
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 or she is not otherwise impaired.
PENALTIES FOR Firearm while under the influence – MARIJUANA
Any person who violates the provisions of this statute is guilty of a misdemeanor which carries a sentence of six (6) months in jail and/or $1,000 in fines.
Further, the firearm is subject to forfeiture, only if, during the violation, the firearm is brandished, aimed or otherwise handled by the person in a manner which endangered others.
Defenses To Possession of Firearms Under The Influence
Three common defenses to charges of violating NRS 202.257 in Nevada include:
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 officers were mistaken about the defendant being impaired. Either way, the State must prove beyond a reasonable doubt that the defendant had a BAC of at least .1 or was too compromised to handle firearms. If this cannot be accomplished, 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. 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 a defendant can show that the firearm was not in his or her actual 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 or her personal residence. If a Defendant can show that he or she was facing a threat of immediate bodily harm and was using the gun as a reasonable form of self-defense in his or her home, the case should be dropped.
The typical bail amount for a charge of Possession of Firearm Under the Influence is $1,000.
If you have been charged with this, or any other marijuana related offense, please call us at 702-405-0001 for a free consultation with an attorney.