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Are You Going to Jail?
- Thread starter GuyRelford
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It can lead wherever you think. I don't care. Your response is typical of what I would call a fanatic. Coming up with all sorts of wild and crazy crap about taking your guns away.
All I am saying is you should never drink alcohol and carry your weapon. Dont overthink it. Its pretty simple.
All I am saying is you should never drink alcohol and carry your weapon. Dont overthink it. Its pretty simple.
Does that include your own home? Are you saying that it should be illegal to be in your own home & having 'A' (as in even one) drink with a gun available to you? Are you suggesting that if you might ever have one drink then you should not be able to own a gun or a car?
I think you may need to think on this a little more. It's not as simple as you might think.
While I might agree that the "they're-going-to-take-our-guns" paranoia is through the roof right now, the fact is that the zeal of many anti-gunners (of whichever political persuasion or party) will make them exploit any possible weakness to try to do that very thing. Paranoia will destroy ya' but vigilence will protect our rights.
Do you really see it as "wild and crazy crap"?
Recent history would show otherwise. The proliferation of gun laws and rules has not made us safer. Statistics would seem to indicate the opposite was true.
I carried a knife all through school. Grade school, middle, and high. Because I was a thug? No, I was a Cub Scout and a Boy Scout. You could pull out a Swiss Army Knife in class and use the screw driver, the scissors, etc, and a teacher woudln't bat an eye.
Now? I would be suspended via "zero tolerance". Would my intent have been any different then, as it would be now? No? Then what changed?
A couple isolated incidents with knives in school, and some school official decided it was their job to "protect the people". Rules are made to protect our children. First its fixed blade knives, then its large knives. then, it's ALL knives. So it works right? Less knife injury now, then 30 years ago in schools? Nope!
This is analogous to your belief that "one drink" should preclude one from having a gun. Someone makes a law saying as such. Then someone decides that since that law works, lets protect the people more and make the laws stricter. And so on.
Have the gun laws already in place made us safer? Have they protected the people? Have they prevented accidents. Again, NOPE!
You can scoff and call those of us that believe that way "fanatics" all you want, but that doesn't make it so. I believe most of us are realists. We follow history, we see how these things snowball when it comes to politicians. We see a President that has said, on record, that it is the Government's job to "take care of" the people. This frightens us, and goes against what I believe the founding fathers had in mind for Government.
We The People should take care of each other, the Government should Govern. Period.
It is already illegal to use a gun in a crime, so therefore, it is already illegal for someone who is drunk, to misuse a firearm in a criminal manner. If I am responsible enough to own a gun, then I should be responsible enough to be aware of my limitations when drinking, sick, tired, etc.
If your so worried about all this you should run for a government office. And stop whining about what "might" happen. You all are way too paranoid.
And yes it is wild and crazy crap. It is what it is.
I keep my self armed at all times and always will. The govenment will never take away our right to defend ourselves. The people will not let that happen.
I dont know what planet you live on, but here on earth in todays times no weapons of any kind should be allowed in schools. Too many f***ed up parents in the world today that have children.
I work in Tactical Security in South Florida and have to deal, daily, with those children. Its like a Third World country down here. They have absolutely no respect for anything or anybody. One of the areas we work near Orlando is nicknamed Mogadishu. Our officers have to carry M16's.
Yesterday was Yesterday. Live in the day.
Today the US is nothing like it was when I grew up. It is the slow(but getting faster) decline of our way of life and of the USA itself.
So as I said from the beginning, dont drink and carry.
And yes it is wild and crazy crap. It is what it is.
I keep my self armed at all times and always will. The govenment will never take away our right to defend ourselves. The people will not let that happen.
I dont know what planet you live on, but here on earth in todays times no weapons of any kind should be allowed in schools. Too many f***ed up parents in the world today that have children.
I work in Tactical Security in South Florida and have to deal, daily, with those children. Its like a Third World country down here. They have absolutely no respect for anything or anybody. One of the areas we work near Orlando is nicknamed Mogadishu. Our officers have to carry M16's.
Yesterday was Yesterday. Live in the day.
Today the US is nothing like it was when I grew up. It is the slow(but getting faster) decline of our way of life and of the USA itself.
So as I said from the beginning, dont drink and carry.
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My point went RIGHT over your head. I said nothing about living in the past, I said nothing about knives being allowed in schools, I was showing you examples of....ah, nevermind....
A battle of logic and reason with an illogical and unreasonable opponent...
IndyGunSafety
Master
I like to answer these before I read what everybody else says, so I can go with my gut like I would on the street. I would say public intox maybe. But if they didn't ask you to leave you are not trespassing yet. Can’t wait to hear the answer! 
IndyGunSafety
Master
Well the question stated nothing about the person being drunk, only that they had a few drinks at the bar. Since none of that information is given, that one must assume that the person is NOT drunk or at least would blow a .08 BAC to be legally drunk.
IF you are not actively operating a motor vehicle you can refuse any testing. oh they will make sound like you are in trouble for the refusal, but there is nothing they can do. I went through this once on the night before the 500. I got in an argument with a friend who was trashed and trying to get in his car to drive home. I was trying to stop him and get the keys. A state cop saw the argument and split us up and started asking questions. An IPD cop showed up and stuck the breath thingy in my face and I said no. (I wasn't drunk anyway) He got all huffy and made it sound like I was in trouble for refusing in an attempt to intimidate me into complying. I politley said "I'm not operating a motor vehicle so I am not taking a breath test." The state cop smiled, handed me my ID back and told me to have a nice night.
So, isn't a public intox charge totally subjective? The officer can charge you without a breath test if they really want to, right? Once you tell them you have been drinking doesn't that open the door? Do they need anything else?
IF you are not actively operating a motor vehicle you can refuse any testing. oh they will make sound like you are in trouble for the refusal, but there is nothing they can do. I went through this once on the night before the 500. I got in an argument with a friend who was trashed and trying to get in his car to drive home. I was trying to stop him and get the keys. A state cop saw the argument and split us up and started asking questions. An IPD cop showed up and stuck the breath thingy in my face and I said no. (I wasn't drunk anyway) He got all huffy and made it sound like I was in trouble for refusing in an attempt to intimidate me into complying. I politley said "I'm not operating a motor vehicle so I am not taking a breath test." The state cop smiled, handed me my ID back and told me to have a nice night.
So, isn't a public intox charge totally subjective? The officer can charge you without a breath test if they really want to, right? Once you tell them you have been drinking doesn't that open the door? Do they need anything else?
Not really, I do need to show that you are under the influence of alcohol or other drugs. I show intoxication by making observations.
-The smell of an alcoholic beverage coming from their person
-Bloodshot/watery eyes
-Unsteady balance
-Slurred speech
-Poor manual dexterity
There is not legal limit for PI like DUI.
denny, based on your response, it would be pretty easy for a LEO to arrest someone for PI since everything you listed is pretty subjective. a cop could be a real jerk to just about anyone and there isnt anything the guy could do.....the only real objective evidence will be that the bartender says he was in there drinking. the rest will be the officer's account, backed up by the "fact" he was drinking. word of LEO or the word of the guy who was drinking?
Well, we have to site specific examples of each to hold up in court. It is not enough to testify that the person had unsteady balance. We will need to testify to what the person was doing to demonstrate unsteady balance. See what I'm saying? The only exception to that is the smell of alcoholic beverage, odor is odor and hard to expand on.
While it is true that there isn't a "per se" PI charge, the intoxication element that has to be proven is exactly the same as it is for an Operating While Intoxicated charge. By law, an admissible chem test of .08 or greater is prima facia evidence of intoxication. That evidence can be rebutted, but good luck with that. Conversely, admissible evidence of .07 or lower is prima facia evidence you are not intoxicated, subject of course to rebuttal by a showing that you were behaving like you were trashed. The problem with so many PI charges is that the officer is unwilling to take the time to even offer a certified test. Some judges will let this slide; others not so much.
PI is a kind of open ended law in Indiana in many ways. For one, it requires no showing that you were misbehaving yourself unlike the "drunk and disorderly" laws of many other states. Also, you can be PI'd in a bar or as a passenger in a car. I believe there is a case that says that you cannot be PI'd as a passenger if your driver blows .00 but I don't know the cite off the top of my head.
Conversely, the court of appeals has held that the statute does not apply to a person on another person's private property that is not open to the public; even if the person has no right to be there. As such, if you pass out in some random person's driveway, you cannot be PI'd per the court of appeals. However, if they ask you to leave and you refuse it would be crim trespass.
As to the original question here, I agree with Gunlawyer that the wording of the sign is going to be key. I just saw such a sign at the hospital today which simply said: "No Weapons - No Smoking." In my opinion, neither smoking or carrying would be grounds for criminal charges under that sign unless you refuse to leave when ask. However, if the sign explictly denies entry or is under penalty of crim trespass, I think it is possible that you could be charged and convicted.
That said, I think it would be very unlikely that either would happen unless you refused to leave when asked. One should always ask oneself whether it is worth being the test case and that answer should almost always be "NO" unless you know the consequences of an adverse result and can live with them.
Best,
Joe
This is all I need to prove intoxication and add the public element and I have a case. Maybe in other counties, they like using the Datamasters for PI only charges. Not in Marion County. If you have a PBT...maybe but they are not allowed to be used in court...they are only FYI in the field.
C 9-13-2-86
Intoxicated
Sec. 86. "Intoxicated" means under the influence of:
(1) alcohol;
(2) a controlled substance (as defined in IC 35-48-1);
(3) a drug other than alcohol or a controlled substance;
(4) a substance described in IC 35-46-6-2 or IC 35-46-6-3; or
(5) a combination of substances described in subdivisions (1) through (4);
so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties.
As added by P.L.2-1991, SEC.1. Amended by P.L.175-2001, SEC.1; P.L.151-2006, SEC.4.
I've made 100's of PI arrests over the years, some with a PBT reading but NONE with a Datamaster. Never an issue since I don't need a BAC to show intoxication.
As one who has made a couple of hundred DUI arrests working taskforce, that is news to me. Unless there is a case I can read...I am doubting that. I'm pretty good in keeping up with case law.
Again, I'd love to read the case because I do not think that is the case. If they have permission to be there...yes, no PI charge. If they do not, they are treated just as if they were found in ,example,a department store ( still private property) but accessible to the general public.
Well said. I agree wholeheartedly.
They can charge you with trespassing, that I know. Saw a similar situation play out like that once due to a shoplifter. The person that had been driving was charged with trespassing, even though he had no idea the girl he had drove there was going to shoplift. He took a plea bargain, so who knows about the legality of it all, but it can certainly get you in a lot of trouble.
If an action is forbade by the owner, and you proceed there anyhow, they can easily press trespassing charges.
If an action is forbade by the owner, and you proceed there anyhow, they can easily press trespassing charges.
The published case is Jones v. State, 881 N.E.2d 1095 (Ind. Ct. App. 2008). Your example of a department store is inapplicable because department stores are held open to the public, yards are not. Link below:
http://www.in.gov/judiciary/opinions/pdf/03110802mpb.pdf
A following unpublished case which reasserted the holding in Jones is Tolbert v. State found at the link below:
http://www.in.gov/judiciary/opinions/pdf/01280902cld.pdf
Private property, not held open to the public, does NOT become public just because you are drunk and on it without permission. Remember, unless it is posted it is not criminally illegal to go on anothers private property. Also see Christian v. State, published this year, which held that being drunk in a communal parking area used by your friend and your friend's neighbors was not "public."
http://www.in.gov/judiciary/opinions/pdf/12050809ebb.pdf
I never said you had to have a datamaster slip, just the if you did have one over .08 you had your case made for you unless they weren't in public. You can make OWI's without a datamaster too, but it probably isn't a good idea, especially since the law obliges you to offer implied consent. There is a reason that a ton of OWI's that are tried are refusals. It is alot harder to prove intoxication without a test, especially since a test gives you the per se counts on an OWI.
IMO, the reason most officers don't get a certified test on a PI is because they almost never go to trial since most are divertable or get fines/costs. However, if your observable signs of intoxication are weak, there are judges out there that won't convict without a certified.
Like I said, I'm pretty sure the case exists but I don't know the cite off the top of my head. I'll see if I can find it; I'm pretty sure I know someone who has a copy of the case. That said, see the other three cites I gave you above before you get too certain that you've got all the caselaw. Pretty much no one, judges included, really does. That's why when I don't have the cite in front of me, I go with "pretty sure".
I am curious, what PI arrests made contemporaneously with a DUI arrest working DUI project would have to do with the scenario I'm talking about. It is my understanding that you can be PI'd as a passenger if the driver has had anything to drink, but cannot if he is a true "designated driver". However, like I said, I'm not certain about that and will try to find the cite.
Also, just for my own edification; doesn't marion co. now have set of officers on duty 24/7 who specialize in OWI's and take over almost all DUI stops?
Best,
Joe
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GuyRelford
Master
By the way, I believe that I owe the posters on this thread an apology for unintentionally creating some confusion as to the original question that I was asking. I was trying to focus the discussion on the trespassing issue (because the hypothetical gun owner carried a gun into the bar after ignoring the sign on the front door). In doing so, I gave some very inconsistent responses to the question of whether the question in the OP ("Are You Going to Jail?) was limited to a "gun-related offense" or not. In answering that question - I ended up saying both "yes" and "no," which had to be confusing and a little bit frustrating.
Obviously, "criminal trespass," on its face, has nothing to do with possessing a gun. However, the potential trespass arose in this scenario only because the gun owner carried a firearm into the bar in "violation" of the sign on the front door. In trying to steer the conversation away from PI or other possible offenses unrelated to the gun owner's possession of the firearm, I created some significant ambiguity as to what question I was asking - and whether the question was limited to a "firearms-related offense" or not. For that, I apologize, and I'll try to be much clearer as to what my question is in the event that I post any future legal scenarios.
Thanks to oldfb for pointing out my inconsistency.
Guy
Obviously, "criminal trespass," on its face, has nothing to do with possessing a gun. However, the potential trespass arose in this scenario only because the gun owner carried a firearm into the bar in "violation" of the sign on the front door. In trying to steer the conversation away from PI or other possible offenses unrelated to the gun owner's possession of the firearm, I created some significant ambiguity as to what question I was asking - and whether the question was limited to a "firearms-related offense" or not. For that, I apologize, and I'll try to be much clearer as to what my question is in the event that I post any future legal scenarios.
Thanks to oldfb for pointing out my inconsistency.
Guy
Interesting, I did note this is the ruling
"Prosecuting and convicting Jones for being intoxicated in a vehicle parked in a private driveway, not disturbing or offending anyone, does nothing to serve this purpose."
I am curious if he was disturbing/offending someone, then would the requirement be met. Example. Female was falling down drunk. Manages to walk to a house that she believes is hers. She knocks on the doors/windows trying to get her husband (who's not inside obviously) to open the door. Officers are called by neighbors but not the homeowner since they are not home at the time. She is clearly intoxicated and has no business at this property, she is too drunk to realize it. She is arrested for PI. This is my scenerio, I made this exact arrest some years ago. My opinion is a good arrest, even now.
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