Iowa Bill Could Compel Gun Carriers to Take Breathalyzer or Lose Permit

[Common Sense Party]

A new bill advancing through the Iowa Senate would compel gun owners to take a breathalyzer test if an officer suspects they're intoxicated while armed. Under the proposal, anyone who declines would automatically forfeit their firearm permit.

The provision is one of several restrictions included in a bill that would update Iowa's gun ownership laws. It's meant to make the consequences for drinking and carrying a firearm similar to the consequences for drinking and driving.


Read more: http://www.foxnews.com/politics/2011/03/02/iowa-compel-gun-carriers-breathalyzer-lose-permit/#ixzz1FZWMWTE7

[bluestateguy]

1. That law would facilitate racial profiling

Somehow I see cops using that power much more often upon blacks and Hispanics.

[Recursion]

18. Well, they don't need this law to do that (nt)

[WatsonT]

2. New law mandates random rectal examines for anyone suspected of owning a firearm at some point

because you never know, they might have something up there.

[damntexdem]

3. Good, makes sense.

[Glassunion]

4. I'm having a hard time seeing the downside to this.

1. I agree that one should never be in possesion of a firearm while intoxicated.
2. It is already illegal in the state to be intoxicated while carrying a firearm.
3. If an officer has resonable suspision that an individual is intoxicated and they are carrying a firearm, I feel that it is not unreasonable to administer a breathalyzer.

[Common Sense Party]

6. I'm with you. Much like with a vehicle, we don't need buzzed or drunk

people in public with complicated tools that could do some damage if handled improperly.

I think most permit-holders already comply with this.

[Frustratedlady]

10. I agree. I was happy to see that subject line. n/t

[shadowrider]

5. I have no problem with this. n/t

[Kennah]

7. Not seeing a downside

Curiosity has led me to inquire about Washington law on the subject. Will report what I find.

[speltwon]

30. I can answer it for you now

WA law does not criminalize being intoxicated while armed. Note also it does not criminalize public intoxication at all. If one is DUI (and note one does not have ot be "intoxicated" to be DUI, merely "impaired" OR a .08.

In WA state you can only be compelled to take a breathalyzer in two cases

1) you are a driver involved in a collision involving substantial bodily injury to another person
in this case, it can be forcefully taken against your will w/o a warrant
2) By court order (in this case it will almost always be blood, not breath)

if you refuse a breathalyzer after an arrest for DUI (which requires PC of course) you lose your license for a year and the refusal can be used against you. THe actual refusal is not a crime.

[AtheistCrusader]

8. K&R

Good bill.

Always a potential for abuse, but if we can justify it for drivers, I don't see why not.

[MineralMan]

9. Seems equivalent to the driving laws.

Sounds good to me. It is against the law to carry while intoxicated, is it not?

"Please step over here, sir. I smelled alcohol on your breath, and you seem to be uncoordinated. Please blow into this device."

[Common Sense Party]

11. I believe in most states that have a CCW permit, it is illegal and you

can lose the permit if you're CUI (carrying under the influence).

I'm not sure, though...

[TheWraith]

14. It's illegal to carry under the influence in most states.

The only ones I'm aware of where it's not illegal is, I believe, Oregon.

[speltwon]

31. It's not illegal in WA state nt

[TheWraith]

40. Actually now that I think about it, I think it was WA and not OR.

I was having a hard time remembering which, but you're right.

[speltwon]

45. np. I'm very pro RKBA but I would have no problem with a law

criminalizing carry while intoxicated (or even merely impaired), or at least one that provides an automatic CCW repeal or even repeal of right to carry period (WA does not require a permit to carry openly) if one is caught carrying while impaired.

[Euromutt]

47. I'm not so sure

I can't find any statute specifically prohibiting being "armed under the influence," however, RCW 9.41.098 (http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.098) reads:

(1) The superior courts and the courts of limited jurisdiction of the state may order forfeiture of a firearm which is proven to be:
<...>
(e) In the possession of a person who is in any place in which a concealed pistol license is required, and who is under the influence of any drug or under the influence of intoxicating liquor, as defined in chapter 46.61 RCW; <...>

I wouldn't be surprised if carrying while inebriated could be prosecuted under RCW 9.41.270 (http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.270); I think you can fairly argue that a person in possession of a firearm while sloshed "warrants alarm for the safety of other persons."

[speltwon]

48. I can tell you that I have seen zero examples of any such prosecution

under 9.41.270 so I'd say you'd have to show me one.

I would agree that a creative cop/prosecutor combo could make it fly, though . It's a good theory. I think it's pretty clear that being impaired (by any drug) warrants alarm for the safety of others if you are carrying. Next time I see "my friend the prosecutor" (I know a few), I'm going to ask them their opinion on this. I actually never thought about it, and it makes sense.

[GreenStormCloud]

12. Sounds reasonable to me. N/T

[TheWraith]

13. I'm rather surprised that they can't already do that, actually.

Given the fact that carrying while intoxicated is illegal, I would have assumed that they could execute a sobriety test on the same legal grounds as when they stop someone suspected of DUI.

[Common Sense Party]

15. Can't they breathalyze someone if they suspect him of public intox?

If so, this bill seems rather superfluous.

[TheWraith]

16. They can in most places I know of, but Iowa may have stricter laws.

Actually, I don't object at all to strict laws controlling breathalyzer searches--it prevents the police from hassling people who are otherwise committing no crime. But at the same time I would think that if an officer has probable cause to believe that a crime is being committed, such as DUI or a firearms violation, that that would trump other restrictions on such tests.

[Recursion]

19. Actually no; it's only possible on drivers because licensing is required

Even then you can't force it, you can just automatically suspend the license if they refuse.

Since no licensing is required for being a pedestrian, it's difficult for officers to actually cite people who aren't in cars and don't want to identify themselves.

[Common Sense Party]

21. So how do they arrest someone for public intoxication?

[Recursion]

24. Do you have difficulty telling when someone is drunk?

Neither do police officers.

[Common Sense Party]

25. What about buzzed?

There's a reason they test drivers' blood alcohol levels.

Someone may not be full-on drunk, but they may not be safe to drive, either.

[Recursion]

26. Public Intoxication is rarely prosecuted

If they wanted to take it to court they would find an excuse to breathalyze or do an FST. Usually the point of PI arrests is to get them off the streets and into the drunk tank for the night. I know in some places it just comes with a civil citation, though they can still lock you up for the night if they think you're a danger.

[GKirk]

59. I guess I do need some help with that...

...are we talking a certain blood alcohol level? If so what level? I have a bit of a problem
with a person being harassed just for being intoxicated in public. It would seem that if I had a private party at my house and one f the guests got smashed and was taken home by cab or by a designated driver they would still be considered intoxicated in public, especially if the sober driver got pulled over for some random violation. None of this has to do with CCW, btw.

[speltwon]

34. Not all states even HAVE public intoxication laws fwiw

Mine does not. You arrest based on PC. Cops can't penalize an intoxicated person for not blowing on a breathalyzer, but the failure to provide direct evidence can be used against them . Why does it not get excluded under miranda (the refusal)? Because miranda refers to testimonial (words) not direct evidence, under case law. The law varies state to state but under the federal case law, the refusal is admissible

[Recursion]

38. Admissable but not dispositive

Also, we have to remember that realistically the point of most public intoxication arrests is to get the guy off the street for the night, not to press charges later (when that happens, it's usually for an assault or vandalism that can be separately charged).

[speltwon]

44. Correct

I was also referring mostly to DUI's vs. public intoxication arrests (considering my state does not even have the latter charge).

And it makes sense to me in that any rational person IF they were not intoxicated would want to take a breathalyzer because they should know it will exonerate them. otoh, alcohol among its effects , effects judgment, so there you go.

[speltwon]

33. That's not the issue

The issue is can they penalize you for NOT taking one... They can with DUI because there is an "implied consent" law.

[speltwon]

32. The issue isn't whether they can ask you do to a sobriety test

the issue is whether they can compel you to take a breathalyzer and if they can punish you (civilly) for refusing.

The reason they do that for dui is the "implied consent" statutes, which are based partly on the fact that driving is considered a "privilege". Frankly, I'm not aware of any case law and whether it would be constitutional ex-post heller but it sounds pretty reasonable on its face.

[Recursion]

17. That sounds reasonable (nt)

[rl6214]

20. New law mandates police perform breathalyzer

on anyone suspected of being drunk in public.

It is against the law to be drunk in public, right?

Guilty until proven innocent, right?

[ileus]

22. I don't see a problem here...

[Euromutt]

23. I'm okay with "implied consent"; not so much with breathalyzers specifically

To the best of my understanding, implied consent laws generally require you to submit to some form of testing, not any and all forms. In particular, Field Sobriety Tests and Breathalyzers are known to be less than fully reliable, and citizens should be within their rights to refuse to submit to those in favor of blood or urine testing.

The provision is <...> meant to make the consequences for drinking and carrying a firearm similar to the consequences for drinking and driving.

That's a reasonable goal, in my opinion, but I'm skeptical about how reasonable the details are. In particular, I think the sanction of "automatically forfeit<ing>" one's permit goes against the notion of not depriving someone of liberty and/or property without due process.

[speltwon]

35. Breathalyzers are pheonomenally reliable

PORTABLE BREATH TESTS are not. Huge difference.

In my state, any person arrested for DUI ALSO has the right to a blood test by a physician of THEIR own choice. In the entire history of WA state, there is not a single case of one of those tests refuting a breathalyzer. BReathalyzer has to calibrate EACH TIME with an external sample, an internal standard , take ambient room air tests, and take 2 tests of the arrestees breath which both have to measure in a very close tolerance.

That's more failsafes than you could ever hope for. If you are innocent , a breathalyzer is your best friend.

PORTABLE breath tests aren't even admissible as physical evidence in my state. They can be used to corroborate probable cause only, but not as evidence themselves of the level of impairment.

[Euromutt]

37. The term "breathalyzer" gets used to include hand-held "field testing devices"

To clarify, yes, it's the hand-held "field testing devices" I have my misgivings about, not so much the "desktop" models. It's unclear to me from the article cited in the OP that the legislation in question doesn't mean the hand-held type.

(By the way, you're in WA? I live in south King Co.)

[speltwon]

43. I am in your "neighborhood" then

Yea, breathalyzer is also a brand name. It's like "scotch tape". Most people use it pretty much interchangably with a breath test machine. I try to distinguish PBT for the portables. I would have misgivings about the portables. imo, PBT should be (and are) usable as (part of ) probable cause, but no juror should be able to conclude a person WAS a .12 because a PBT said he was. they don't have the internal/external standards check that a real "breathalyzer" has.

[jpak]

27. Good - responsible gun owners will leave them home locked up when they drink

for the others

jail - just like OUI

yup

[mvccd1000]

28. I assume some states have different limits?

I'm not much of a drinker, and when I do drink I don't drive, or carry, or do much of anything else, so I've never looked into these laws.

I would guess, though, that some states make it illegal to be above 0.08 (or 0.10) while carrying, some probably have a lower threshold (just like a CDL carries a lower threshold than a regular driver's license), and some probably don't address it at all.

Anybody know what Iowa's current law is? (The article merely says they can't carry "while intoxicated.")

In general, I support any restriction that's equal to one for the rest of the population. (i.e., You can't murder someone without a gun, so you shouldn't be able to murder someone with a gun. You can't trespass without a gun, so you shouldn't be able to trespass with a gun. You can't be drunk in public without a gun, so you shouldn't be able to be drunk in public with a gun.)

[Euromutt]

36. I think 0.08% is pretty much standard.

It's probably a federal "guideline" upon which federal funding for highway maintenance is dependent. There are apparently a couple of states, such as Colorado, that have a charge of "driving while ability impaired" which applies at BACs of 0.05% and over, but carries less severe penalties than a DUI/DWI charge.

[backwoodsbob]

29. gun owner here

no problem with this at all.

[guitar man]

39. I have no problem with this

I have a strict rule at my house "when the liquor cabinet gets unlocked the gun cabinet gets locked "

After 33 years of playing music in road houses, dives and honky tonks, I've seen enough drunk behavior to know guns and drinking don't mix.

[benEzra]

41. Depending on how it's written, I don't see it as problem...

and perhaps it will take some of the hot air out of the "ZOMG PERMIT HOLDERS CAN CARRY NEAR WINE LISTS!!!" troupe.

[NewMoonTherian]

42. I like it!

If, as mentioned in posts 23, 35 and 37, the accused has the right to demand a blood test or desktop breathalyzer, not just the portable device. Is the revocation permanent? I think 3 years would be plenty for a first offense. There's lots of potential for cops to use this to harass innocent gun owners, but it's not as if cops don't already have the leeway to harass whomever they choose.

[lawodevolution]

46. is there a state that already does this?

[GKirk]

49. But....

...how is the police officer going to determine that the inebriated person is carrying a gun? Wouldn't the suspect have to have done something, other than being intoxicated in public, to warrant this breathalyzer?

If I'm driving my car and I'm weaving down the road a police officer has reasonable suspicion that I may be drunk driving. But if I'm staggering down the sidewalk how does that lead him to suspect I may be carrying concealed?

[X_Digger]

50. It does seem rather odd.. good catch. n/t

[Common Sense Party]

51. The officer will stop you if you appear to be intoxicated in public.

He will ask you if you have any weapons on you. As a good permit holder, even BEFORE he asks you, you should tell him you've a CCW permit and you have a weapon on you. At that point, the cop will ask you to submit to a breathalyzer.

[GKirk]

52. I suppose that could happen like that

if it's illegal to be intoxicated in public. But just being intoxicated, in and of itself, is not a reason to be harassedd by law enforcement in many areas. You have to add something to it; like drunk & disorderly.

[Common Sense Party]

53. Iowa has a public intoxication law.

[GKirk]

55. I'm curious then....

...what constitutes public intoxication? Walking out from a bar to a cab and a little stumble? Slurred speech?
It sounds like a way for police to harass people to me.

[Common Sense Party]

56. I'm not sure. It's up to the LEO, I guess:

123.46 Consumption or intoxication in public places – notifications – chemical tests – exoneration.
1. As used in this section unless the context otherwise requires:
a. “Arrest” means the same as defined in section 804.5 and includes taking into custody pursuant to section 232.19 .
b. “Chemical test” means a test of a person’s blood, breath, or urine to determine the percentage of alcohol present by a qualified person using devices and methods approved by the commissioner of public safety.
c. “Peace officer” means the same as defined in section 801.4 .
d. “School” means a public or private school or that portion of a public or private school which provides teaching for any grade from kindergarten through grade twelve.
2. A person shall not use or consume alcoholic liquor, wine, or beer upon the public streets or highways. A person shall not use or consume alcoholic liquor in any public place except premises covered by a liquor control license. A person shall not possess or consume alcoholic liquors, wine, or beer on public school property or while attending a public or private school-related function. A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor.
3. When a peace officer arrests a person on a charge of public intoxication under this section, the peace officer shall inform the person that the person may have a chemical test administered at the person’s own expense. If a device approved by the commissioner of public safety for testing a sample of a person’s breath to determine the person’s blood alcohol concentration is available, that is the only test that need be offered the person arrested. In a prosecution for public intoxication, evidence of the results of a chemical test performed under this subsection is admissible upon proof of a proper foundation. The percentage of alcohol present in a person’s blood, breath, or urine established by the results of a chemical test performed within two hours after the person’s arrest on a charge of public intoxication is presumed to be the percentage of alcohol present at the time of arrest.
4. a. A peace officer shall make a reasonable effort to identify a person under the age of eighteen who violates this section and, if the person is not referred to juvenile court, the law enforcement agency of which the peace officer is an employee shall make a reasonable attempt to notify the person’s custodial parent or legal guardian of the violation, whether or not the person is taken into custody, unless the officer has reasonable grounds to believe that notification is not in the best interests of the person or will endanger that person.
b. The peace officer shall also make a reasonable effort to identify the elementary or secondary school which the person attends if the person is enrolled in elementary or secondary school and to notify the superintendent or the superintendent’s designee of the school which the person attends, or the authorities in charge of the nonpublic school which the person attends, of the violation. If the person is taken into custody, the peace officer shall notify a juvenile court officer who shall make a reasonable effort to identify the elementary or secondary school the person attends, if any, and to notify the superintendent of the school district or the superintendent’s designee, or the authorities in charge of the nonpublic school, of the violation. A reasonable attempt to notify the person includes, but is not limited to, a telephone call or notice by first-class mail.
5. Upon the expiration of two years following conviction for a violation of this section, a person may petition the court to exonerate the person of the conviction, and if the person has had no other criminal convictions, other than simple misdemeanor violations of chapter 321 during the two-year period, the person shall be deemed exonerated of the offense as a matter of law. The court shall enter an order exonerating the person of the conviction, and ordering that the record of the conviction be expunged by the clerk of the district court.

85 Acts, ch 32, §36; 86 Acts, ch 1067, §1; 89 Acts, ch 225, §10; 92 Acts, ch 1231, §7; 2000 Acts, ch 1138, §1

[GKirk]

58. That gives the LEO an awful lot of leeway...

... to give anyone, anywhere a breath test.

"A person shall not be intoxicated or simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor."

and

"When a peace officer arrests a person on a charge of public intoxication under this section, the peace officer shall inform the person that the person may have a chemical test administered at the person’s own expense."

[Common Sense Party]

60. Indeed it does.

[NHRAhotrodder]

54. I see no downside to this

[DWC]

57. Conflicted

First, I absolutely agree that firearms and firewater are a very bad combination. Further I absolutely agree that motor vehicles, including boats and planes, in combination with alcohol is a direct threat to public safety.

However, I see no real difference between having a gun while intoxicated and sitting in your vehicle with the engine off while intoxicated. The use of either when intoxicated, represent a direct, deadly threat to public safety. It is the use, not the possession, that can be effectively regulated.

My personal choice is to not get myself to a .08 level at any time whether I am carrying, or driving, or not.

Semper Fi,

[JonLP24]

61. I wonder what the BAC limit or is there one

Is one beer enough or is it 8.0? Unrelated but I always find it interesting how humans are attracted to round numbers. Such as 7.9 is OK but not 8.0.