Crimes » Gun Charges » Carrying Under the Influence

Carrying Under the Influence

dj carrying-under-the-influence-600

Alcohol & Your Carry Permit

When it comes to Minnesota carry laws, alcohol is a concern.  Carrying under the influence is a crime in a public place.  So, can you carry in a bar?  Read this page by Gun Crimes Defense Attorney Thomas Gallagher to explore these topics.

Minnesota carry laws and alcohol

Even with a carry permit, we may not lawfully carry a pistol in a public place in Minnesota when:

  • under the influence of a “controlled substance;”
  • or under the influence of alcohol;
  • or with an alcohol concentration more than 0.04.

A police officer may arrest without a warrant upon probable cause of this offense; regardless whether committed in officer’s presence.

Gun Attorney Thomas Gallagher on Minnesota carry laws, alcohol, carrying under the influence
Gun Attorney Thomas Gallagher on Minnesota carry laws, alcohol, carrying under the influence

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.

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 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.

Preliminary screening test

Good enough to arrest, but not to convict

Preliminary screening tests, or portable breath test machines (PBT), are screening tests.  Screening means better than nothing but not accurate.  And that’s why a positive result on a screening test must be followed by an evidentiary chemical test

An evidentiary chemical test of breath, urine or blood is more accurate, compared to a screening test.  They can still be unreliable, but we won’t get into that here.

When:   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 authorized in section § 624.7143.
Alcohol: the Preliminary Screening Test or Portable Breath Test (PBT)
Alcohol: the Preliminary Screening Test or Portable Breath Test (PBT)

But no one may use it in any court action, except:

  1. to prove that the police officer test properly required the PBT, or
  2. 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 breath test.

Evidentiary chemical testing

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 resulting in property damage or injury;

only then the officer may 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 warrantthe officer can request a urine or blood sample for an evidentiary test.  Minnesota Statutes § 624.7143, subd. 1, 1a.

Refusal of the 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 good reasons we won’t discuss here.

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.”

Minnesota Statutes § 624.7143, subd. 2.

Rights warning before evidentiary chemical 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:

(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.”

Minnesota Statutes § 624.7143, subd. 3.
Is it legal to carry in a bar in Minnesota with a permit?
Is it legal to carry in a bar in Minnesota with a permit?

Right to consult an attorney

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 a knowledgeable attorney on the phone, you’ll better understand the law and your choices.

Penalties

The penalties for carrying under the influence or over 0.04 can be 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.  And the person may not reapply for a period of one year from the date of conviction.
  • If over 0.04: suspension of authority to carry a pistol in a public place.  And the suspension is for 180 days from the date of conviction.
  • Property rights:  Firearm carried in violation of over 0.04, is not subject to forfeiture.

Minnesota Statutes § 624.7143, subd. 2.

“Can they prosecute me if I refuse the chemical test?”

Refusal of a chemical test is not a crime.  But a prosecutor could prosecute a carrying under the influence crime using other evidence of impairment, if any.  This is similar 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.

“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.  But it’s illegal to carry under the influence or over 0.04, in a bar, or any public place.

Because the 0.04 alcohol concentration level is so low, avoid drinking at all when carrying in bar

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 or maybe two “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.

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 when over 0.04 alcohol concentration. 

Gun Crimes Defense Attorney

Self-defense – Minnesota Overview

Minnesota Self-defense laws

Ineligible Person in Possession of a Firearm

What is firearm possession?


Restoration of civil rights to firearms


Minnesota Carry Permit Law


Carrying under the influence (this page)

Felony doesn’t always impair Minnesota gun rights

Restoring Gun Rights After a Domestic Misdemeanor in Minnesota

“Do I need a lawyer for carrying under the influence charges or a permit revocation?”

As always, it’s up to you whether you want help from a professional. 

Minnesota Gun Crime Defense Attorney Thomas Gallagher
Minnesota Gun Crime Defense Attorney Thomas Gallagher

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, and alcohol cases, like Attorney Thomas Gallagher.

Question about Minnesota carry laws, alcohol?  Or, carrying under the influence?  You can call Gun Crimes Defense Attorney Thomas Gallagher at 612 333-1500