Estimated reading time: 10 minutes
Key Takeaways
- Carrying in public under the influence or over 0.04 alcohol is a crime in Minnesota.
- You can legally carry in a bar with a permit but not impaired or over 0.04.
- Penalties include misdemeanors for over 0.04 and revocation of carry permit at higher levels.
- A preliminary screening test (PBT) cannot be used in a trial but can be used to arrest.
- Consult an attorney for help if charged with carrying under the influence.
When it comes to Minnesota carry laws, alcohol can cause concerns. Carrying under the influence of alcohol is a crime “in a public place.” So, can you carry in a bar?
This page by Gun Crimes Defense Attorney Thomas Gallagher explores these topics, including evidence, avoiding arrest and conviction.
Alcohol & Minnesota carry laws
In Minnesota, even with a carry permit, “a person may not carry a pistol on or about the person’s clothes or person in a public place” when:
- “under the influence” of a “controlled substance;”
- “under the influence” of alcohol;
- with “alcohol concentration” more than 0.04.
Minnesota Statutes § 624.7142.
In-presence rule exception: A police officer may arrest without a warrant upon probable cause of this offense; regardless whether committed in officer’s presence.
Prevention take-away: On a practical level, you’re not going to be “under the influence” at that low alcohol level. That’s why the real limit is the 0.04 alcohol concentration. (But the “under the influence” part of the statute allows prosecution even where the state has no chemical test evidence.)
A 180 pound male could be over 0.04 after just two drinks or beers. And a 110 pound female cold be over after just one. So, the best prevention plan could be to avoid drinking at all, while carrying in public.
But otherwise, look at a “Widmark formula chart” to find out how many drinks it takes to get you to 0.04. Then if you do drink, be sure to count your drinks and stay at or below 0.04.
“On or about the person’s clothes or person”
According to the Minnesota Supreme Court:
“To summarize, a pistol is carried “on or about” one’s person or clothing if there is either a physical nexus between the person and the pistol or if the pistol is carried within arm’s reach of the person.”
State v. Prigge, 907 NW2d 635 (Minn. Supreme Court 2018)
In the Prigge case, the Minnesota Supreme Court applied rules of statutory construction, arriving at the above. They ended up deciding that a person is “carry[ing] a pistol on or about the person’s clothes or person” when that person is driving a vehicle with a handgun in the center console.
And the Court offered in another case:
“To avoid liability under this statute [section 624.7142], permit holders need only stow the pistol out of arm’s reach, such as in the trunk of the vehicle, if they want to take their gun with them in a car on a public road after they have been drinking.”
State v. Serbus, 957 NW2d 84 (Minn. Supreme Court 2021)
“In a public place”
The Minnesota Supreme Court found the statute’s term “in a public place” to be ambiguous, and applied rules of statutory construction. After an analysis, it concluded:
“In sum, we conclude that the meaning of public place in section 624.7142 is ambiguous. Applying the relevant canons of statutory construction, we determine that the Legislature intended to prohibit an impaired driver from carrying a pistol on a highway in a vehicle. Accordingly, we hold that the driver of a motor vehicle on a public highway is in a ‘public place’ for the purpose of Minn. Stat. § 624.7142.”
State v. Serbus, 957 NW2d 84 (Minn. Supreme Court 2021)
That court also noted: “the presence of the phrase establishes that the Legislature chose to single out the danger posed in one set of locations, namely, public places, over another set of locations, namely, nonpublic places.” State v. Serbus, 957 NW2d 84 (Minn. Supreme Court 2021). So, this criminal law cannot apply in a nonpublic place. See also:
Public Place in Minnesota Gun Laws.
Relationship to DWI Laws
Sometimes we see cases where a police officer conducts a traffic stop, arrests on suspicion of DWI, then finds a pistol in the car. When that happens, the driver may face charges of both Driving Under the Influence of Alcohol, and “Carrying a Pistol in a Public Place with 0.04% or more Alcohol Concentration.”
Police and legal procedures for both charges share similarities. But, if we compare to carry laws on alcohol, they also have significant differences. See:
Avoiding a DUI: Countermeasures at a DWI Stop
Preliminary Screening test
Close enough to arrest, but not convict: Preliminary screening tests, or portable breath test (PBT) machines, are “screening” tests. Screening means better than nothing, but not accurate as to level. And that’s why a positive result on a screening test must be followed by an evidentiary chemical test.
Why “screening?” Consider an example. A diabetic driver’s sugar-inulin ratio is out-of-whack. A police officer stops the driver on suspicion of impaired driving. Then, the officer smells an odor that might be alcohol. (The odor is actually “ketones” in the breath.) The driver blows into a PBT breath machine. Manufacturers claim that its fuel cell technology can distinguish ketones from alcohol in the breath.
A negative PBT helps the officer “screen out” suspicion of DWI. The officer instead now correctly suspects a medical emergency. So, the PBT can be useful to “rule out” alcohol if negative. But a positive PBT test is too inaccurate to rely on for a true level. Therefore, it can support probable cause to arrest, but is not reliable enough to use to convict.
Compare: An “evidentiary” chemical test of breath, urine or blood is more accurate under proper conditions, compared to a screening test. They can still be unreliable, but we won’t get into that here.
Limits on PBT evidence. A police officer may have reason to believe that the person was “carrying under the influence or over 0.04.” If so, the officer may require the person to provide a breath sample for a preliminary screening test.
A police officer uses a preliminary screening test to decide whether:
- to arrest, and
- whether to require the “evidentiary” chemical tests.
But no one may use the PBT reading in any court action, except:
- to prove that the police officer test properly required the PBT, or
- in a civil action arising out of the use of the pistol.
And following the preliminary screening test, a police officer may require additional, evidentiary tests as provided under section 624.7143.
But “refusing” a PBT subjects a person to the consequences of §624.7143 for an evidentiary chemical test; unless the person submits to a urine test, blood test or evidentiary breath test.
Evidentiary chem testing: carrying under the influence
If a police officer has probable cause to believe that you’ve been carrying (in public) under the influence or over 0.04, and:
- arrested you for same, or
- you refused the PBT, or
- got a PBT reading of over 0.04, or
- firearms-related accident results in property damage or injury;
only then, may the officer require an evidentiary chemical test. Minnesota Statutes §624.7143, subd. 1.
The police officer can request a breath sample for the “evidentiary” chemical test. But note that this is different than the previous “preliminary screening” test of breath. And, with a search warrant, the officer can request a urine or blood sample for an evidentiary test. Minnesota Statutes §624.7143, subds. 1, 1a.
Refusal of evidentiary chemical test
The evidentiary chemical test is “mandatory” under those conditions. But the penalty for refusal is civil, not criminal.
The Driving Under the Influence laws in Minnesota create a crime for refusing an evidentiary chemical test. But the carry permit laws do not create a refusal crime. The DUI Refusal Crime law has been under attack for years, for many reasons.
The law says, “if a person refuses to take a test required … none must be given.” But:
“a court may impose a civil penalty of $500 and may revoke the person’s authority to carry a pistol in a public place … for a period of one year from the date of the refusal. The person shall be accorded notice and an opportunity to be heard prior to imposition of the civil penalty or the revocation.”
Minn. Stat. § 624.7143, subd. 2
Rights warning before evidentiary chem test
And as with DUI cases in Minnesota, the police officer must read a rights warning:
“At the time a test is requested, the person must be informed that:
Minn. Stat. § 624.7143, subd. 3
(1) Minnesota law requires a person to take a test to determine if the person is under the influence of alcohol or a controlled substance;
(2) if the person refuses to take the test, the person is subject to a civil penalty of $500 and is prohibited for a period of one year from carrying a pistol in a public place on or about the person’s clothes or person, as provided under subdivision 2; and
(3) that, in the case of a breath test, the person has the right to consult with an attorney, but that this right is limited to the extent it cannot unreasonably delay administration of the test or the person will be deemed to have refused the test.”
Right to consult attorney: carrying under the influence
If arrested for carrying under the influence, should you use your right to consult an attorney? Yes, you should, before deciding whether to give another sample for chemical testing. Ideally, call one of the criminal lawyers who knows gun laws, like Gun Defense Attorney Thomas Gallagher.
Why call a lawyer? If police fail to help vindicate your right to pre-test counsel, you could win on that basis. And, if you do consult with an attorney knowledgeable about carry laws, alcohol, on the phone, you’ll better understand the law and your choices.
Penalties; carrying under the influence
The penalties for carrying under the influence or over 0.04 simplified:
- Over 0.04 is a misdemeanor crime. But a subsequent violation, or a 0.10 or more, is a gross misdemeanor.
- In addition, if 0.10 or more: revocation of authority to carry a pistol in a public place. May not reapply for one year from the date of conviction.
- If over 0.04: suspension of authority to carry a pistol in public place; for 180 days from conviction date.
- Property rights: Firearm carried in violation of over 0.04, is not subject to forfeiture.
Minn. Stat. § 624.7143, subd. 2
“Can they prosecute me if I refuse the chemical test?”
Under Minnesota’s carry laws alcohol, refusal of a chemical test is not a crime. (Though it is a crime inder Minnesota DUI alcohol laws.)
But a prosecutor could prosecute a “carrying under the influence” crime using other evidence of impairment, if any. Compare to a DUI case: if the prosecutor has no chemical test evidence, they can’t prosecute for being over the arbitrary legal limit. But they can prosecute for “Driving Under the Influence” if there is other evidence of impaired driving.
“Could I face carrying under the influence charges without a chemical test?”
In theory, a person could be charged with carrying a firearm under the influence in a public place, including carry in a bar, even if the government does not have chemical test evidence indicating an alcohol level. After the dust settles, and time has passed since the police investigation concluded, if police did not get chemical test evidence of alcohol level the state cannot charge a crime related to being over any alcohol level.
Theoretically, however, the state could charge carrying a firearm under the influence in a public place, even without chemical test evidence. But the would have to be substantial other evidence of impairment by alcohol. And we just don’t see cases being charged without chemical test evidence. This is not surprising since most people do not show signs of impairment even at 0.10 and above alcohol levels.
“Can I legally carry in a bar in Minnesota?”
Generally, yes, if you have a Minnesota carry permit, you can carry a handgun in a bar in Minnesota (unless they ask you to leave). But it’s illegal to carry under the influence, or over 0.04 in a bar or any other public place. Because the 0.04 alcohol concentration level is so very low, avoiding alcohol completely when you carry in a bar (or elsewhere), makes sense
If you do drink, know how many it takes to get to 0.04 for you. Then count your drinks to be sure you’re below the 0.04 limit. For most people that will be one one-ounce or maybe two one-ounce “airport” drinks. Your gender and your weight are the main factors affecting how much alcohol it takes to get over 0.04. Look at a Widmark formula chart to learn about that. Of course, the easiest, math-free, discipline to simply decide not drink when carrying, or not to carry when drinking.
So, yes you can legally carry in a bar in Minnesota. (But the exception would be a bar that properly posts a “no guns” sign, or gives a verbal request to leave.) Regardless, you can’t legally carry in public, anywhere, when over 0.04 alcohol concentration.
“Exception for police, Carrying Under the Influence?”
No. Minnesota’s Carry Under the Influence law has no exceptions for police and other law enforcement officers. Police can carry in a bar, just like anyone with a permit to carry. They just can’t lawfully carry over 0.04 BAC. Conflict-of-interest issues may arise since the law enforcement jurisdiction that would investigate, would typically be the employer. Co-workers may be unwilling to investigate a violation by their fellow police officer.
Police officers should take care not to drink to 0.04 alcohol concentration or above, or to the point of being under the influence, while carrying a firearm. But if they somehow cross the line, they should seek legal representation by an experienced criminal defense attorney such as Attorney Thomas Gallagher who knows carry laws, alcohol and related cases.
Gun-related pages
Brandishing, Assault & Self-Defense: Legal Readiness
Question? Call Attorney Thomas Gallagher, 612 333-1500
“Do I need a lawyer for carrying under the influence charge?” As always, it’s up to you whether you want help from a professional. In general though, anytime you’re facing a criminal charge you should hire a lawyer to help prevent a conviction. And a lawyer could help you avoid losing your carry permit.
So, call a good criminal defense lawyer who knows carry laws, alcohol and related cases: Attorney Thomas Gallagher. He welcomes your call, during office hours.
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