Sounds reasonable for any person.  Don't operate a car while intoxicated, don't operate a gun while intoxicated.

http://www.civilbeat.com/articles/2014/01/28/21024-hawaii-senator-wants-to-keep-guns-out-of-the-hands-of-drunk-cops/

This is probably in response to the recent outbreak of drunk cops shooting people?   

Sounds reasonable for any person.  Don't operate a car while intoxicated, don't operate a gun while intoxicated.

Yes. But that's not what this bill says.

There are few key things here.  First, partaking of an alcoholic beverage does not make you intoxicated; you need to consume a specific amount in a set time frame to have your BAC rise to a level where judgement is slightly or significantly impaired.  I mean all the time when I go out with my wife I will have one drink maybe two at the most, which puts me well below the point of being intoxicated.  That doesn't really make sense to say that I'm for some reason impaired and cannot carry a gun.  The same thing could be said with any drug that you take, because many of them may have at least *some* form of minor impairment.

On the flip side, people must understand that when carrying firearms, regardless of what a law says you invite opportunity to have your judgement discredited if you are not operating at 100%.  This could be from anything though, sleep, stress, past actions, facebook postings, or consumption of alcohol. The Deedy trial is a great example of that.  It's of no question that I have stated that after reviewing the films, I believe that it looked like a legit self-defense shooting. Unfortunately, because of the all the places Deedy was it has brought a hell storm down to question his actions.

Lastly, we need to consider that a person can still make a good decision when intoxicated and shouldn't be entirely precluded from exercising sound judgement in defense of self or others.  While many people underestimate the effects of alcohol and opt to drive under the influence, there are still many individuals who, while intoxicated, exercise judgement and call someone to get them or wait it out before driving.

sounds like another pointless law to me. no idea why this pol wants to risk the wrath of shopo

Maybe we could get someone to introduce a bill to prevent our elected officials from writing legislation while under the influence, of whatever.......

Maybe we could get someone to introduce a bill to prevent our elected officials from writing legislation while under the influence, of whatever.......

You mean like Rida "Canabis" Cabanilla?

Maybe we could get someone to introduce a bill to prevent our elected officials from writing legislation while under the influence, of whatever.......

Money?

This bill would still keep the status quo. LEOSA would trump this law. So one drink would definitely be fine.

Keep in mind any case involving LEOSA would most likely be argued in federal court after filing a 1446 petition... And former AG Mark Bennet's so called LEOSA guidebook serves more use as toilet paper than it does as a document of merit. A lot of what he has in there is preempted and unenforcable.

This bill would still keep the status quo. LEOSA would trump this law. So one drink would definitely be fine.

Keep in mind any case involving LEOSA would most likely be argued in federal court after filing a 1446 petition... And former AG Mark Bennet's so called LEOSA guidebook serves more use as toilet paper than it does as a document of merit. A lot of what he has in there is preempted and unenforcable.

You are not able to consume any alcohol while carrying under LEOSA.  It's actually spelled out in the statute that  the LEO must  is not  under the influence of alcohol or another intoxicating substance. So it's kind of the same issue.

Since it says "influence" I would consider that to be anything over .00

Since the traffic laws allow driving while not legally impaired, meaning you have been drinking but you're not drunk, would this not be the standard?  I mean, thousands die in wrecks each year, and if there is ANY chance a couple of drinks impairs your judgement and reflexes, it makes sense to have .00 as the legal limit for driving a 2,500-4,000 lb killing machine.

Same for COPs, I would say.  If you can drive with .08 BAC, why not operate a gun?  Same situation, I think.  Each involves operating a machine that has the potential to cause death.  Alcohol should have the same effect on driving as it does use of a firearm -- same depressant effect. 

So, what's good for driving should be safe for CCW.  I know the political argument, but let's look just at the logic and science of the real issue. If alcohol is NOT a problem up to a point for driving, that same threshold is okay for firearm carry.

What do you think?

Since the traffic laws allow driving while not legally impaired, meaning you have been drinking but you're not drunk, would this not be the standard?  I mean, thousands die in wrecks each year, and if there is ANY chance a couple of drinks impairs your judgement and reflexes, it makes sense to have .00 as the legal limit for driving a 2,500-4,000 lb killing machine.

Same for COPs, I would say.  If you can drive with .08 BAC, why not operate a gun?  Same situation, I think.  Each involves operating a machine that has the potential to cause death.  Alcohol should have the same effect on driving as it does use of a firearm -- same depressant effect. 

So, what's good for driving should be safe for CCW.  I know the political argument, but let's look just at the logic and science of the real issue. If alcohol is NOT a problem up to a point for driving, that same threshold is okay for firearm carry.

What do you think?

For me, I think the biggest difference is 291E-61 defines a specific measurable set point for alcohol "influence" being .08.   My problem is not someone having alcohol and a gun per se, but rather being at a level of intoxication while carrying.  Just so people can see the statute and how it's worded.

"(3)  With .08 or more grams of alcohol per two hundred ten liters of breath; or

(4)  With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.

- See more at: http://statutes.laws.com/hawaii/volume-05/title-17/chapter-291e/hrs-0291e-0061-htm#sthash.MgGYhcT7.dpuf"

If we didn't have that, then 'influence' is left to be very - very vague.  The Marijuana law portion is kind of like that :  (2)  While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner.  It's very subjective.

If Espero changed it to be something like "You shall not carry a firearm while (insert DUI language here)." I don't think people would have a problem with this.   I would also like to see a self-defense exception go into the law; I think this would allow for someone that was drunk to utilize their weapon.  If they misused it, it wouldn't get them off anyways.

You are not able to consume any alcohol while carrying under LEOSA.  It's actually spelled out in the statute that  the LEO must  is not  under the influence of alcohol or another intoxicating substance. So it's kind of the same issue.

Since it says "influence" I would consider that to be anything over .00

Under the influence is a legal term. Courts have held that the state must prove that the person acted in a manner that a normal person would not have or that the person acted in a manner that an impaired person would have.

One drink is ok under LEOSA. Most states have an impaired driving law that only requires the person be under the influence. One drink never meets this threshold. 

I have a drink and carry under LEOSA, since it's a federal law it goes by federal standards, and "under the influence" has been held to be synonymous with "impairment" involving cases of alcohol and prescription drugs.

When LEOSA was passed, a 0.00 BAC standard was debated..... It failed.

Under the influence is a legal term. Courts have held that the state must prove that the person acted in a manner that a normal person would not have or that the person acted in a manner that an impaired person would have.

One drink is ok under LEOSA. Most states have an impaired driving law that only requires the person be under the influence. One drink never meets this threshold. 

I have a drink and carry under LEOSA, since it's a federal law it goes by federal standards, and "under the influence" has been held to be synonymous with "impairment" involving cases of alcohol and prescription drugs. Can you please cite to the federal definition of impairment?  Most state statutes are adopted wholesale for purposes of enforcing traffic violations. It is possible that the District of Columbia has one though.

When LEOSA was passed, a 0.00 BAC standard was debated..... It failed.

Citations please.  All state statutes covering "Under the influence" have threshold set points for alcohol, which give and define what exactly the number is.  The same is not present for many other drugs.  Moreover, there are many occupations where taking *anything* *at all* can put you "under the influence." (FAA).
When you are piss tested after an injury or a major incident at a job it's not a setpoint, but even just the mere presence of a intoxicating substance such as marijuana that can get you really screwed.

We cannot just assume that what is under the influence for one section is adopted wholesale and applied to another statute.  For instance, some places / statutes say that .05 is the limit if you are in a car accident or incident.  In the prison .01 is under the influence for inmates.   Also, I'm not doing this to just challenge you.  If we are going to put out something that could get someone in trouble, I think it's important to make sure that the information is justified and the person has a chance to look at the available sources.   Everything that I have read in regards to my carrying under LEOSA seems to go against what your saying.  I rather be informed than be in a bad legal position.

Citations please.  All state statutes covering "Under the influence" have threshold set points for alcohol, which give and define what exactly the number is.  The same is not present for many other drugs.  Moreover, there are many occupations where taking *anything* *at all* can put you "under the influence." (FAA).
When you are piss tested after an injury or a major incident at a job it's not a setpoint, but even just the mere presence of a intoxicating substance such as marijuana that can get you really screwed.

We cannot just assume that what is under the influence for one section is adopted wholesale and applied to another statute.  For instance, some places / statutes say that .05 is the limit if you are in a car accident or incident.  In the prison .01 is under the influence for inmates.   Also, I'm not doing this to just challenge you.  If we are going to put out something that could get someone in trouble, I think it's important to make sure that the information is justified and the person has a chance to look at the available sources.   Everything that I have read in regards to my carrying under LEOSA seems to go against what your saying.  I rather be informed than be in a bad legal position.

Mostly true; however, since LEOSA is federal, a federal standard would trump any state variance. Since it's a preemptive law, anything left to the states would have to be explicitly stated (ie. state laws that prohibit carrying on government buildings, parks etc).

Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980) said Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. This  eliminates a state variation style standard.

Blacks law dictionary has a definition for under the influence and impaired. If a court doesn't go by a standard found elsewhere in federal law, then courts will consult black's law dictionary, if they don't settle for 0.08 or 0.04 found in federal funding standards for DUI limits. Furthermore, the FAA relies on a zero tolerance for pilots, they aren't held to an "under the influence" standard, one drink and they are in violation.

This is why in the Iron Pigs case, LEOSA applied even though the seattle cop had a couple of drinks, it was because he wasn't "under the influence".

There is no way Hawaii's one drink rule could survive the Rule of Lenity  as per McNally v United States (1987), any ambiguity in a criminal statute shall be resolved in favor of the defendant.

If a person was arrested, the plain language of under the influence would apply and the state would have to prove that LEOSA didn't apply because the person was impaired to the extent that they were not acting normal due to the loss of control, in other words, reasonable person would have their judgement impaired. It would seem that this could be lower than 0.08; however, it's definitely not one Miller Light.

There hasn't been one published court case where a person carrying has been found "under the influence" after one drink (unless specifically defined by statue). It was tried in Rhode Island but the state courts said "under the influence" wasn't defined in RI 11-47-52 but that it reasonably meant that it was enough to where a reasonable person would have their judgement impaired.

The lack of a defined definition doesn't automatically default to the strictest standard possible.

You said that you have read things on LEOSA that say one drink is "under the influence". What are you referring to besides Hawaii's embarrassing "LEOSA guide" which was torn apart by Sheepdog Academy? Because that's the only place I have seen such a draconian interpretation.

Mostly true; however, since LEOSA is federal, a federal standard would trump any state variance. Since it's a preemptive law, anything left to the states would have to be explicitly stated (ie. state laws that prohibit carrying on government buildings, parks etc).  Those location prohibitions are indeed called out in the statute as left to the states.

Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980) said Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. This  eliminates a state variation style standard. We could go back, but my understanding is that we shouldn't drink.

Blacks law dictionary has a definition for under the influence and impaired. If a court doesn't go by a standard found elsewhere in federal law, then courts will consult black's law dictionary, if they don't settle for 0.08 or 0.04 found in federal funding standards for DUI limits. Furthermore, the FAA relies on a zero tolerance for pilots, they aren't held to an "under the influence" standard, one drink and they are in violation.  Black's law has "Undue influence" but it's more related to property.  They have a definition for "intoxicating substance" and "intoxication", but my copy is from 1910. Not sure if there are more revised editions. I also checked with Fowler's but, influence isn't one of the words that was put in there.  SCOTUS has used Fowler's a few time as well.

This is why in the Iron Pigs case, LEOSA applied even though the seattle cop had a couple of drinks, it was because he wasn't "under the influence". Going to go research this case!

There is no way Hawaii's one drink rule could survive the Rule of Lenity  as per McNally v United States (1987), any ambiguity in a criminal statute shall be resolved in favor of the defendant. I don' think it's ambiguous at all.  Influence means any change. At .2 you have some changes in attitude and functions.  That's the alcohol influencing you; I'm not really sure how you can say otherwise.  For many people one drink could get you to that .02 level no problem; my wife is definitely under the influence after 1 glass of wine.  In Hawaii, the State's not going to have ambiguity.  They are going to produce that letter saying, "See, your Honor, Hawaii has already opined that any alcohol is a no-no.  It's not our fault he didn't read it!

If a person was arrested, the plain language of under the influence would apply and the state would have to prove that LEOSA didn't apply because the person was impaired to the extent that they were not acting normal due to the loss of control, in other words, reasonable person would have their judgement impaired. It would seem that this could be lower than 0.08; however, it's definitely not one Miller Light.  State doesn't really need to prove much.  You will have to get an attorney and fork out everything you own to fight the charge. Your agency would say you aren't covered because you were drinking off-duty and therefore it's your own time / own problem.  More importantly, this is just on the criminal side.  The burden of proof is *significantly* lower on the civil side.  States lacking strong castle doctrine protections could put someone in a really tight spot! =(

There hasn't been one published court case where a person carrying has been found "under the influence" after one drink (unless specifically defined by statue). It was tried in Rhode Island but the state courts said "under the influence" wasn't defined in RI 11-47-52 but that it reasonably meant that it was enough to where a reasonable person would have their judgement impaired. Do you have a cite to this I would love to review it.  Going to try and google fu it.

The lack of a defined definition doesn't automatically default to the strictest standard possible. I agree partially.  I don't think "influence" is a hard standard to meet.  I think wording it "intoxicated" would have been a much better and more reasonable approach.  Unfortunately, we didn't luck out like that.

You said that you have read things on LEOSA that say one drink is "under the influence". What are you referring to besides Hawaii's embarrassing "LEOSA guide" which was torn apart by Sheepdog Academy? Because that's the only place I have seen such a draconian interpretation. Arizona has opined along the same lines as Hawaii. Zero alcohol.  Police-one I believe did, and Policemag did say it.   I personally consider .02 under influence since that's where we have scientific information available showing that there are effects of the alcohol on the persons judgement and attitude (albeit small ones).

Going to go and read that Seattle case now.

Ok. So i read the iron pigs case.  Biggest thing is that the State could not restrict where they could carry. The bar is not a place that they can restrict from Feds, even though the S.D. Prosecutor thought it should have been and that it was "sufficiently akin to the exceptions."  He was wrong - it's not listed, that shit doesn't count.   However, if the bar itself wanted to, it could restrict carry there, but not the government.  The government could only restrict locations within their own domain (their buildings, parks, etc.).  I see the judge stated that they were not under the influence, but I'm not sure the record really reflects that? The FLETC training says that the individuals involved were "socializing."

The USAG has stated that we must "meet the state standards, if any, regarding alcohol or drug use by law enforcement officers authorized to carry a firearm."  That's in the AG memo 01312005.   I'm not sure what Hawaii's standards are.  I bet if I tried to UIPA the information they would give me a shit ton of grief.

Ok. So i read the iron pigs case.  Biggest thing is that the State could not restrict where they could carry. The bar is not a place that they can restrict from Feds, even though the S.D. Prosecutor thought it should have been and that it was "sufficiently akin to the exceptions."  He was wrong - it's not listed, that shit doesn't count.   However, if the bar itself wanted to, it could restrict carry there, but not the government.  The government could only restrict locations within their own domain (their buildings, parks, etc.).  I see the judge stated that they were not under the influence, but I'm not sure the record really reflects that? The FLETC training says that the individuals involved were "socializing."

The USAG has stated that we must "meet the state standards, if any, regarding alcohol or drug use by law enforcement officers authorized to carry a firearm."  That's in the AG memo 01312005.   I'm not sure what Hawaii's standards are.  I bet if I tried to UIPA the information they would give me a shit ton of grief.

The RI case will take some digging; however it was based off (People v. Togher (1970), 127 Ill.App.2d 141, 262 N.E.2d 88  from IL.

Because it's a federal statute, hawaii doesn't get to interpret it or fine tune the definitions. Either someone is covered under the law or they are not. Hawaii, nor any other state gets to define anything outside what is explicitly stated in the statute such as government property being off limits and the state establishing qualification standards.

Hawaii is just hostile to LEOSA, they claimed in the past that non residents must register even though there are cops that couldn't register even if they wanted to because they are prohibited under Hawaii law from possessing a firearm due to violent misdemeanor criminal convictions.

They also claimed that retiree's  can only carry what you qualify with even though "types" of firearms are defined in 18 USC 921. If you qual with a handgun, all handguns are covered, if you qual with a shotgun, all shotguns are covered, if you qual with a short barreled shotgun, all short barreled shotguns are covered.

There is a murky area with intoxication; however, if someone is covered under LEOSA and are exempt... They are exempt from any law to the contrary.  States just like to whine about preemption when they lose control over a situation.

At least Hawaii isn't as bad as the Mariana's islands who pretend that LEOSA doesn't exist at all.

This is why if you are ever jammed up for carrying under LEOSA, file a 1446 petition to move the case out of state court to federal court ASAP. 

While there is no hard definition on intoxication for LEOSA, it is a federal standard that is not left to each state or territory to decide... Kind of like how these states that issue qual cards put "pistol" and "revolver" on the cards even though those words aren't defined in federal law, only "handgun".

At least Hawaii isn't as bad as the Mariana's islands who pretend that LEOSA doesn't exist at all.

This isn't going to last long. It's already on like (3) different groups radars. Not just for LEOSA.  There are Heller style problems out there!

I think we can agree that the language has gaps in it that could cause some significant headache for anyone that got in trouble even though they may be 100% innocent?  I always think the best course of action is to not consume any alcohol when I'm carrying under that; my personal policy is not to, I never want anything in the way of being able to question my judgement.

This isn't going to last long. It's already on like (3) different groups radars. Not just for LEOSA.  There are Heller style problems out there!

I think we can agree that the language has gaps in it that could cause some significant headache for anyone that got in trouble even though they may be 100% innocent?  I always think the best course of action is to not consume any alcohol when I'm carrying under that; my personal policy is not to, I never want anything in the way of being able to question my judgement.

I've been asking the CNMI AG for an opinion, he's ignoring me. The same for American Samoa. Guam on the other hand is 100 percent on board.


I'm well aware of the CNMI Heller issue... Thanks again for the donation. Let's just say, I'll miss my springfield XD

I've been asking the CNMI AG for an opinion, he's ignoring me. The same for American Samoa. Guam on the other hand is 100 percent on board.


I'm well aware of the CNMI Heller issue... Thanks again for the donation. Let's just say, I'll miss my springfield XD

Not to derail the thread, but if you get bored you can look into AS.  They have some *very* strange laws and stuff in the treaty.  Some stuff about the "spirit" or "essence" of the island and the tribe type stuff.  It would be considered crazy when compared to Western law.