Are You Going to Jail?

[Fargo]

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.

While that analysis makes complete sense from a rational perspective, from a legal perspective you are going to run into problems. The court found Jones innocent because he wasn't in "public," not because he wasn't causing a problem. They used the dicta you quote above to buttress that position, not as the basis for the ruling itself itself.

Remember, the text of the statute makes no reference to "drunk and disorderly," but rather to "public and intoxicated". If he ain't in public, there is no way the statute applies regardless of how disturbing or offensive the behavior is. If there are others around, I think you might make a disorderly conduct on it: or even if she is alone I think if she is likely to damage the house you could make a disorderly conduct on it based upon tumultuous conduct:

IC 35-45-1-1
Definitions
Sec. 1. As used in this chapter:
"Tumultuous conduct" means conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property.
"Unlawful assembly" means an assembly of five (5) or more persons whose common object is to commit an unlawful act, or a lawful act by unlawful means. Prior concert is not necessary to form an unlawful assembly.
As added by Acts 1976, P.L.148, SEC.5. Amended by Acts 1977, P.L.340, SEC.68.

IMO, the PI statute is in need of serious revision. It should include a "disorderly" element, and should apply to both public areas and places you have no right to be, like other peoples yards.

Best

Joe

 

[MolonLabe]

Since Indiana Code is silent on the carrying of a firearm into a bar room or resturant that serves alcohol, and Indiana also has no laws about signage forbidding guns, then no you would NOT be arrested. If an officer were called, and you were asked to leave and you DIDNT leave, then you could be arrested for trespass.

The only IC that I can find that deals with intoxicated persons and weapons is:

IC 35-47-4-1
Delivery of deadly weapon to intoxicated person
Sec. 1. A person who sells, barters, gives, or delivers any deadly weapon to any person at the time in a state of intoxication, knowing him to be in a state of intoxication, or to any person who is in the habit of becoming intoxicated, and knowing him to be a person who is in the habit of becoming intoxicated, commits a Class B misdemeanor.
As added by P.L.311-1983, SEC.32.

Since a person is not considered legally intoxicated in Indiana until they are a .08 BAC then the person would be in the clear. And since this deals with the delivery of a weapon to an intoxicated person, and not about a person carrying a gun while intoxicated, then again, I dont think this IC would apply.

INGunGuy

I don't think it would either.

.08 BrAC is ONLY legally intoxicated for motor vehicle purposes. There is no breath threshold for a public intoxication charge. In fact, the Portable Breath Test device is only admissible in court as to whether or not it registered a positive or negative result for alcohol. A person can, theoretically, be arrested and convicted for public intox without ever giving a breath sample. The observations of the officer (i.e. unsteady balance, odor of alcoholic beverages, loss of manual dexterity, etc) are more than enough to convict on a public intoxication charge.

 

[theturtle06]

I did not read this every single post in this thread but I was having a discussion with a friend of mine who carries 24/7. We were planning on going to go out to the bar and I was unable to show him the code that allows (or I guess I should say, excludes) one from carrying in a bar. I was able to cite the IC that talks about no carry in the Federal Buildings, schools, ect., and he was under the impression that carry in bars was illegal. I cited this thread talking about how if you are asked to leave you can get in trouble for trespassing. I said it would be foolish (IMO) to carry in a bar but he was not prohibited by law. Was I right?

 

[LPMan59]

I did not read this every single post in this thread but I was having a discussion with a friend of mine who carries 24/7. We were planning on going to go out to the bar and I was unable to show him the code that allows (or I guess I should say, excludes) one from carrying in a bar. I was able to cite the IC that talks about no carry in the Federal Buildings, schools, ect., and he was under the impression that carry in bars was illegal. I cited this thread talking about how if you are asked to leave you can get in trouble for trespassing. I said it would be foolish (IMO) to carry in a bar but he was not prohibited by law. Was I right?

depends on your intentions. as a non-drinker, i think it is foolish for me to not carry into a bar. but if you're drinking, and i mean drinking, i would leave it at home. but that's just me.

 

[finity]

I did not read this every single post in this thread but I was having a discussion with a friend of mine who carries 24/7. We were planning on going to go out to the bar and I was unable to show him the code that allows (or I guess I should say, excludes) one from carrying in a bar. I was able to cite the IC that talks about no carry in the Federal Buildings, schools, ect., and he was under the impression that carry in bars was illegal. I cited this thread talking about how if you are asked to leave you can get in trouble for trespassing. I said it would be foolish (IMO) to carry in a bar but he was not prohibited by law. Was I right?

Yes, you are right that it is not prohibited by law.

It is a matter of debate as to the foolish part.

 

[JohnP82]

Interesting thread. My general rule, whether necessary or not is if I plan on having more than one or two beers I do not carry. Probably why I don't go out drinking very often!

 

[45calibre]

Since Indiana Code is silent on the carrying of a firearm into a bar room or resturant that serves alcohol, and Indiana also has no laws about signage forbidding guns, then no you would NOT be arrested. If an officer were called, and you were asked to leave and you DIDNT leave, then you could be arrested for trespass.

The only IC that I can find that deals with intoxicated persons and weapons is:

IC 35-47-4-1
Delivery of deadly weapon to intoxicated person
Sec. 1. A person who sells, barters, gives, or delivers any deadly weapon to any person at the time in a state of intoxication, knowing him to be in a state of intoxication, or to any person who is in the habit of becoming intoxicated, and knowing him to be a person who is in the habit of becoming intoxicated, commits a Class B misdemeanor.
As added by P.L.311-1983, SEC.32.

Since a person is not considered legally intoxicated in Indiana until they are a .08 BAC then the person would be in the clear. And since this deals with the delivery of a weapon to an intoxicated person, and not about a person carrying a gun while intoxicated, then again, I dont think this IC would apply.

INGunGuy

So does this mean it is illegal for us to carry if we are at .08 BAC ? Or does this mean if we are at .08 and a LEO takes our firearm and say we are with a friend who is driving and he has not been drinking that we will not get our gun back if the cop takes it even though we have a LTCH ?

 

[INGunGuy]

So does this mean it is illegal for us to carry if we are at .08 BAC ? Or does this mean if we are at .08 and a LEO takes our firearm and say we are with a friend who is driving and he has not been drinking that we will not get our gun back if the cop takes it even though we have a LTCH ?

I would recommend you talk to a competent lawyer. I myself am not a lawyer, and can only go by what I read in Indiana code. There could be another IC that deals with possession of a deadly weapon while intoxicated. Also as for the .08 BAC, that is presumed intoxicated for driving a motor vehicle. From what I hear, and again IANAL, but all LEO has to do is to smell alcohol on your breath, you have bloodshot eyes, etc to be presumed intoxicated and fall under the public intoxication statute.

I have to agree with most of the people on the forum, that if you are going to be consuming alcoholic beverages, then you should probably forgo carrying with you. I would say that if you were stopping after work to have a single beer with the "guys" then you should be just fine, but if you are going out for a "night on the town" then keep your piece at home, and just dont get yourself into any bad situations. If you feel the need to carry, then don't drink, be the designated driver.

INGunGuy

 

[Johnny C]

If your of spanish origin, all you gotta do is say it wasnt posted in spanish

 

[mainjet]

Gunlawyer - SO can you be arrested if you were not asked to leave by the owner? Let's say that the owner did not ask you to leave and just called the police like you said in your scenario. Then the police arrive and they are just having a bad day and decide they are not hearing excuses, they are just taking you to jail.

But, when you were walking into the bar you were somewhat distracted by whatever. Maybe you tripped coming in the door. Maybe the crowd cheered real loud about somthing on the TV juust as you were entering and that caught your attention. So you were not looking around to see if there was a sign. Do you still get arrested?

It seems to me that there must be that chance to comply once the offence is pointed out. You could easily not see something that is posted. Just because it is posted and you should have easily been able to see it does not make it impossible to miss.

 

[dschantz]

I don't know what the answer is, but in my opinion you should NOT go to jail.

 

[lonehoosier]

Going to give this old one a bump due to this new thread.

https://www.indianagunowners.com/fo...firearms%94-signs-weekend-nra-convention.html

 

[minuteman32]

No. Unless for P.I.

 

[lonehoosier]

No. Unless for P.I.

Check again.

Several of you have nailed this one - Scutter01 was the first, I believe.

The purpose of my post was to point out the difference between "notices" on the entrances of buildings that merely attempt to regulate conduct (e.g., "shirt and shoes required," or "no pets allowed," or even "no firearms") and notices that may actuallly constitute a "denial of entry" under Indiana's Crimincal Trespass statute.

As Scutter and others have correctly pointed out, IC 35-43-2-2
states the following:

"Criminal trespass; denial of entry; permission to enter; exceptions
Sec. 2. (a) A person who:
(1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person's agent;
(2) not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent;

* * *

(b) A person has been denied entry under subdivision (a)(1) of this section when the person has been denied entry by means of:
(1) personal communication, oral or written;
(2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed by law or likely to come to the attention of the public . . . ."

I wrote my hypothetical "notice" with 35-43-2-2(a)(1) in mind:

"ABSOLUTELY NO FIREARMS!!
ANYONE CARRYING A FIREARM IS EXPRESSLY DENIED ENTRY TO THESE PREMISES.
IF YOU CARRY A GUN INTO THIS BUILDING YOU ARE SUBJECT TO IMMEDIATE ARREST AND PROSECUTION."​

To me, this may likely distinguish this situation from the general rule, as discussed by Bryan Ciyou on p. 94 of "Indiana Handgun Law, 2d Edition," which states:

"[A] retailer has the right to limit and qualify the right to enter the property subject to not carrying a hadgun. It would be improper to enter, and the Licensee would be subject to ejection for possession of a handgun thereat. Failure to leave once requested, would subject the Licensee to arrest for criminal trespass."

Clearly, Bryan has IC 35-43-2-2(a)(2) in mind as he states this, not section (a)(1). And that is what is different about my scenario. The gun owner has arguably been "denied entry" to the premises, yet entered anyway - and that is what creates the possibility of arrest and prosecution for criminal trespass.

Finity is also correct to point out that Alves v. State stands for the proposition that a general "no trespassing" sign on an entrance to property is sufficient to allow a jury to convict a defendant for criminal trespass if he ignores the sign.

There is no Indiana case that addresses my specific scenario, but I do believe that the notice involved - which was much more specific than a general "no firearms" notice on the issue of "denial of entry" - creates a serious risk of arrest.

As always - this isn't meant to be legal advice - just my view and a general "heads up."

I address this issue (and many, many others) in my Comprehensive Indiana Gun Law class. The next class in Indy is November 7. I also have a class in Hammond scheduledf or November 21. Check out Home Page for details.

Guy