Home defence and being drunk

[mack59]

Personally, being half a century old, I have chosen not to drink at all for the last 25 plus years. I chose that for myself because when I drank, I could not reliably tell if I would just have one or two or end up having twenty-two. Essentially that is also the simplest definition of alcoholism - the inability to reliably predict once one starts to drink how much one will end up drinking. That unpredictable loss of control leads people to all sorts of problems - as judgment is the first thing to go.

That is my personal choice and it is what is best for me. But I have met many who can handle alcohol perfectly well - who don't get drunk - though I always thought that defeated the purpose of drinking - but then that was part of the problem for me.

I have also met many people who think they are responsible when drinking and who are typically very responsible when sober - who do really stupid things frequently when they drink to intoxication - things they often wouldn't do sober - yet when intoxicated they try to justify their insane behavior. Some are alcoholic and some just alcohol abusers. The common thread is that alcohol impairs judgment - in small amounts very little, in large amounts a lot.

One example - a woman I know - who is normally a very good mother and responsible person - got intoxicated and drove her car with her kids in it. She told me that she wasn't that intoxicated (as she slurred her words, breathed heavily, was unsteady on her feet, and her eyes had they typical glassey look), and she really didn't think she was too impaired to drive. But she could have killed herself and/or her kids or someone else, gotten a DUI, lost her license for years (as she had a prior DUI when again she states she wasn't that impaired), and could have lost her job and/or her kids to DCFS. Given everything she had to lose - she was exercising extremely poor judgment - due to her drinking. I don't know if she is an alcoholic, just abused alcohol on that and a few other occassions, or if she is just is an alcohol abuser. What I do know is that people who don't have problems with alcohol normally don't have problems in their life related to alcohol.

What I am suggesting is that if one has a legitimate reason for concern that their use of alcohol could cause them problems - such as interferring with important responsibilities in their life, then it might be a good idea to consider whether or not alcohol might be a problem and seek help if you need it.

If you can use alcohol responsibly and not get drunk when driving or handling firearms then it shouldn't be so much an issue.

[SigP6Carry]

I actually followed this, and found little more than people beating my chops, even though I did't post, for drinking. I'm'a college student, and it's no doubt that on a friday or saturday night I'm at a friend's apartment, bar or frat house all night. And often, on nights where I'm in, I'm writing a research paper, short story, playing videogames, reading or watching a movie while enjoying a bottle of Italian wine (I love a good Pinot) or a six pack of imported beer. Generally: the bottle of wine or six pack will be finished by myself in a single night and I won't feel very drunk (I definitely wouldn't let myself drive a car or handle a firearm after all that!). These are my choices and what I enjoy doing. Why should that have a bearing on my ability to defend myself?

But, if someone broke in to my apartment on a night that I was enjoying some beer and writing a paper: what is the vetted presumed result?

[Frank Ettin]

Originally Posted by Thomme

....These are my choices and what I enjoy doing. Why should that have a bearing on my ability to defend myself?

...f someone broke in to my apartment on a night that I was enjoying some beer and writing a paper: what is the vetted presumed result?

No one can necessarily presume a result. It depends on exactly what happens, how, and what your condition is. Having had a drink may not hurt you -- maybe. But it won't help you.

See posts 10, 22 and 25.

[44 AMP]

Is that you judgement is impaired. You might not think so. You don't have to be too drunk to legally drive to have judgement impaired enough (in the eyes of a jury) that what was to you, justified, isn't to them.

One can find numerous instances where an otherwise clear cut situation becomes quite muddled in court. Adding in the alcohol factor is highly unlikely to work in your benefit.

That being said, one has to be alive to enjoy the benefits of our justice system.

The sad fact is, that even though home ought to be a safe place, where one can relax and imbibe, sometimes it isn't. And, after any amount of alcohol, your judgement is suspect. You may not feel impaired, and you may be able to pass any test, but to a jury (especially a civil one) days, weeks months, or even years after the incident, you will have a hugely difficult time convincing them otherwise.

I think the best advice, if you should ever be caught in such a situation, would be to retreat if possible, even though you may have no legal responsiblity to do so. OF course, the situation may not give you that option, and if not, then you simply have to do what you believe necessary, and deal with whatever the consequences are.

[TXsnake]

In Texas, you can shoot a person in your house at night. I add the at night because during the daylight hours you would have to articulate that you were in fear of death or serious bodily injury, using the reasonable man theory. However, darkness trumps that, if he is in your house at night, uninvited, the death or serious bodily injury are presumed. Having said that, the fact that you are intoxicated does not trump the fact that an intruder is in your house. I believe that you are okay, from a criminal justice standpoint. To believe otherwise would be to believe that the case of an intoxicated lady being raped would not be able to use deadly force to protect herself, which is not the case.
As a prosecutor, I have seen more than one case where two intoxicated individuals were in a bar fight shooting/stabbing and the defendant shooter/stabber was able to prevail with a self defense assertion. In civil court, for wrongful death, may be a little shakier as now we are only talking about money and the burden of proof is less. They will assert that the intoxicated individual as some liability because of their menatl state at the time.
I believe that you would prevail in either situation as long as you would be justified in the act when sober. IMHO

[Frank Ettin]

Originally Posted by TXsnake

...To believe otherwise would be to believe that the case of an intoxicated lady being raped would not be able to use deadly force to protect herself, which is not the case....

The intoxicated woman about to be raped presents a very different picture compared with the guy late at night, intoxicated in his living room, who blows away the neighbor kid when he pokes his head around the open door to ask if anyone's home.

Originally Posted by TXsnake

...I have seen more than one case where two intoxicated individuals were in a bar fight shooting/stabbing and the defendant shooter/stabber was able to prevail with a self defense assertion. ...I believe that you would prevail in either situation as long as you would be justified in the act when sober.

Sometimes, but then again, sometimes not. We've seen at least one example of a situation in which what might have been a good self defense shooting went down the tubes because of alcohol (see post 22).

It's always a matter of the totality of the circumstances. Alcohol use would be just one more factor in that equation. It may or may not hurt, but it won't help. And it's only a factor if you've had that drink.

[teeroux]

After the incident continue to have a drink and let the officers see you drink it nervously and say you were so shaken up by the ordeal you needed to have a drink to calm yourself down.

Can't prove you had a drink before hand that way.

[orangello]

^^^ I like that answer.

Honestly, I enjoy a drink now and then, and i'm not going to allow the potential for a home invasion ruin that for me. If i've had a couple of drinks and i am put in a situation that makes me feel threatened, i will take whatever steps i feel are necessary to preserve my good health. If you continue down this slippery slope of rationalization for over-preparedness bordering on paranoia, you could end up afraid to leave you house to buy a gallon of milk for fear the boogy man is going to be hiding under your car with a SAW & body armor. I try to be well-prepared for threats that can be reasonably expected to occur, that's about my limit personally. That said, if you live in an area that has frequent home invasions and similar crime, well maybe you should consider moving or maybe you should keep it to a two beer limit when you are in the "war zone". I don't live in such an area, nor do i strive for a "front line" level of preparedness, but don't let me deter you from being as prepared as you need to be to feel comfortable in your own home.

[Bartholomew Roberts]

In Texas, you can shoot a person in your house at night. I add the at night because during the daylight hours you would have to articulate that you were in fear of death or serious bodily injury, using the reasonable man theory. However, darkness trumps that, if he is in your house at night, uninvited, the death or serious bodily injury are presumed.

I don't believe that is a correct statement of the law; but would certainly appreciate being corrected if I am wrong about that.

Here is Section 9.32 of the Texas Penal Code:

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

I don't see any qualifications in there about it being nighttime, the presumption that the use of deadly force was reasonable in that circumstance applies regardless of what time of day it is. I think you may have confused some of the language in Section 9.42 regarding use of deadly force in protection of property.

[Frank Ettin]

Originally Posted by orangello

...I enjoy a drink now and then, and i'm not going to allow the potential for a home invasion ruin that for me....

That's of course your choice. Life is about choices, and choices have consequences. This thread has been about possible consequences of defending yourself after having consumed alcohol.

Alcohol might or might not become an issue. The probability may be small, but the stakes are high. It's up to each of us to consider the utility and the risks and make his own decision.

You've apparently made your decision, and that's up to you. Someone else might make a different decision and that's up to him.

Originally Posted by orangello

...If you continue down this slippery slope of rationalization for over-preparedness bordering on paranoia, you could end up afraid to leave you house to buy a gallon of milk for fear the boogy man is going to be hiding under your car with a SAW & body armor...

But the fact that someone might decide differently from you is no reason to belittle or insult him or his choice.

Originally Posted by teeroux

After the incident continue to have a drink and let the officers see you drink it nervously and say you were so shaken up by the ordeal you needed to have a drink to calm yourself down....

It is, however, unlikely that the police are going to let you have that drink. But also consider that strong drink is well known for loosening the tongue, and you really don't want to be running off at the mouth at such a time.

[orangello]

But the fact that someone might decide differently from you is no reason to belittle or insult him or his choice.

No offense or belittlement intended, though i do wish that anyone reading this thread consider the cost/impairment of preparedness for a threat against the likelihood of that threat's occurence. I would hate to see anyone go to jail for defending themselves after a few beers, but i would also hate to see someone forgoe an enjoyable activity purely to avoid a risk that is unlikely to occur in the extreme. I wouldn't think those who go to extremes to avoid any potential risk of injury or incarceration "stupid" or "lesser" people, but i would be sad for what they miss out on.

I don't think expressing my opinion as i did was insulting or belittling. I think it was the best way i could think of at that moment to warn people that even preparedness, when taken to an extreme, is a choice with a consequence; i think the consequences of not being prepared for such a situation by having a few beers had been covered pretty well with no balancing presentation of the opposing consequences.

Regardless, i did not intend to insult anyone for their personal preparedness choices.

[xjmox14x]

There's a bunch of people posting that the simple solution is to not drink in the first place. That's fine and dandy, but that's not what the OP asked. He basically asked if it would change the outcome. Well, of course it would. In our country, judgement is just that. It's judgement. An opinion. Unless you were there when it happened, saw it with your own eyes, felt it with your own fingers, heard it with your own ears, or smelled it with your own nose, you are NOT a primary source of information. And guess what? The people who are deciding your fate are not primary sources of that information. They are relying on information given to them in one form or another by another source. What I'm trying to say is, the ones who will determine your fate have to do so without actually experiencing the situation. If it was as easy as "Did he shoot him? Yes. Was he in danger? Yes." then there'd be very few trials lasting longer than 5 minutes. If it were that black and white then the fact that you were lit up like a Christmas Tree on B-52 shots wouldn't matter at all. The facts are the facts.

Therefore, every single bit of evidence counts. And if someone is trying their hardest to defend their person and make you out to be the bad guy in the wrong, then they will use every bit of information against you that they can. Obviously they will say that it impaired your judgement, you wouldn't have done it if you were sober, yadda, yadda, yadda. So yes, you will be in a world of stress with that one, and will be very hard pressed to prove otherwise.

Now with THAT being said, I understand that one really must be prepared, and if he/she has a weapon in their household for HD, then their mindset is in the right place. HOWEVER, a line DOES need to be drawn. Is a simple snubby in the desk drawer enough, or do you feel like having your house locked up tighter than Fort Knoxx with perimeter proximity machine guns locked, loaded, and ready to fire? Along the same lines, are you going to kick back, unwind, and enjoy a few drinks every now and then, or are you going to be at attention with your hand on the grip ready to go at a moments notice because someone, somewhere, might be trying to break into your house and do harm to you sometime in the near future?

My opinion? There is absolutely nothing wrong with drinking in moderation so long as it does not affect others. Will being drunk cause problems should I need to defend myself? Sure. But it won't stop me from drinking every now and then. What I'm trying to say is I love living life. I enjoy doing certain things. I will be/am prepared to a certain degree should certain situations arise... however, I will not change my way of life because there is an extremely remote chance that someone will break into my house, while I'm there, at the exact date and time that I happen to be sipping on an alcoholic beverage.

Roughly 100 people die each year in the US due to lightning strikes. Doesn't mean I'm going to hide in a fallout shelter for 3 days while a shower passes by.

[WoofersInc]

I will have a drink or two now and then. However I don't feel that this should eliminate my right to self defense. I have seen threads on this subject on other boards. A lot of the posters had the sentiment that "once the liquor comes out the guns get locked up". It is not that black and white. I don't get to the point of falling down drunk and playing with the guns. I however don't lock up my home defense guns because I have had something to drink.

In fact here in Nevada I am allowed to carry and have a weapon on me as long as I do not exceed .10 BAC. There is also an exception listed in the statute that exempts people in their house that are using the firearm in self defense.

NRS 202.257 Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.

1. It is unlawful for a person who:

(a) Has a concentration of alcohol of 0.10 or more in his blood or breath; or

(b) Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely exercising actual physical control of a firearm,
to have in his actual physical possession any firearm. This prohibition does not apply to the actual physical possession of a firearm by a person who was within his personal residence and had the firearm in his possession solely for self-defense.
2. Any evidentiary test to determine whether a person has violated the provisions of subsection 1 must be administered in the same manner as an evidentiary test that is administered pursuant to NRS 484.383 to 484.3947, inclusive, except that submission to the evidentiary test is required of any person who is directed by a police officer to submit to the test. If a person to be tested fails to submit to a required test as directed by a police officer, the officer may direct that reasonable force be used to the extent necessary to obtain the samples of blood from the person to be tested, if the officer has reasonable cause to believe that the person to be tested was in violation of this section.

3. Any person who violates the provisions of subsection 1 is guilty of a misdemeanor.

4. A firearm is subject to forfeiture pursuant to NRS 179.1156 to 179.119, inclusive, only if, during the violation of subsection 1, the firearm is brandished, aimed or otherwise handled by the person in a manner which endangered others.

5. As used in this section, the phrase “concentration of alcohol of 0.10 or more in his blood or breath” means 0.10 gram or more of alcohol per 100 milliliters of the blood of a person or per 210 liters of his breath.

(Added to NRS by 1995, 2533; A 1999, 2470; 2003, 2565)

[Erik]

Folks drink to varying degrees at varying times, and given that the topic seems as valid as many to bring up; and in some cases much more so.

As noted or inferred, the issue mostly revolve around perceptions of reasonableness, judgement, and articulation. Think things through for yourselves and act accordingly.

[jborushko]

messy topic...

law or not

1. i drink in my house! one of the great things about being old enough and owning a house, i can do whatever i want!

2. i own guns, carry guns, and shoot guns

3. when to bottle comes out, the carry piece gets put away in the safe PERIOD, but the bedroom gun stays in its place. guns dont mix in booz in my house PERIOD!

4. i rarely get stupid drunk, but id lie if i said that when i sit down with the sole intention to DRINK (not just enjoying a few) i dont get pretty drunk

in either case a)in drinking for enjoyment while winding down or b) drinking to drink. i WILL use whatever force is necessary to keep my family safe. which would entail getting everyone in the bedroom, calling police and covering the door with my firearm--- after that the chips fall where they may, i did right by me

[Nnobby45]

Why would it be that being sober would make the shooting legal, but being drunk would not? I don't know of a single law that stipulates self defense is only valid when sober.

I found the question interesting. At what point do you lose your right to defense from violent criminal attack, in your own home, where alchohol is concerned?

Easy enough to see how one could have their firearm put away while drinking, and access it in an emergency.

Unfortunately, laws aren't always clear cut---probably by design to benefit lawyers. Very easy to imagine ending up in Civil court, even if no criminal charges are filed.

Not at all suggesting one be untruthful with the police, but wouldn't they still have to prove you were intoxicated prior to the shooting? Rather than having been so distraught afterwards, that one needed a few stiff belts to calm down, and was in the process of doing just that when the cops arrived ?

[jborushko]

...that one needed a few stiff belts to calm down, and was in the process of doing just that when the cops arrived ?

hmm now theres a thought!!!!

[Frank Ettin]

Originally Posted by WoofersInc

...I will have a drink or two now and then. However I don't feel that this should eliminate my right to self defense....

Originally Posted by Nnobby45

...At what point do you lose your right to defense from violent criminal attack, in your own home, where alchohol is concerned?...

It's all well and good to focus on your right of self defense. But the reality is that if you defend yourself after consuming alcohol, there is no way to guarantee that the alcohol won't be a factor. In fact, since a big part of deciding the question of whether or not your use of force was justified will depend on your credibility, an assessment of your judgment, and the reliability of your perception, it's hard to imagine it not being a factor. Just the way it is in the real world, and it's up to you to decide how to handle that reality. You pays your money and you takes your chance.

[Mr Dish]

I have a very unusual BBQ grill, it won't light unless I have a beer in one hand...go figure.
I would never consider carrying if I was drinking, but I think if the stuff were starting to hit the fan, and I had to get the gun to defend my family and friends, then I would hope my fellow Americans on my Jury would understand why I had to defend myself and mine, no matter my blood alchohol level. esp if I am on my own property.

[LukeA]

It's all well and good to focus on your right of self defense. But the reality is that if you defend yourself after consuming alcohol, there is no way to guarantee that the alcohol won't be a factor. In fact, since a big part of deciding the question of whether or not your use of force was justified will depend on your credibility, an assessment of your judgment, and the reliability of your perception, it's hard to imagine it not being a factor. Just the way it is in the real world, and it's up to you to decide how to handle that reality. You pays your money and you takes your chance.

Exactly. "It seemed like a good idea at the time, Your Honor."

[WoofersInc]

It's all well and good to focus on your right of self defense. But the reality is that if you defend yourself after consuming alcohol, there is no way to guarantee that the alcohol won't be a factor. In fact, since a big part of deciding the question of whether or not your use of force was justified will depend on your credibility, an assessment of your judgment, and the reliability of your perception, it's hard to imagine it not being a factor. Just the way it is in the real world, and it's up to you to decide how to handle that reality. You pays your money and you takes your chance

Fortunately for me, my state has actually listed this in it's statutes. Any resonable lawyer will just have to bring this up to have the level of alcohol in my blood not be an issue.

"Ladies and gentlemen of the jury, I would like you to be aware of NRS 202.257. Which clearly states a person is exempt from the regulations on firearms and intoxication when he is in his home and is using said firearm for self defense."

Easy to fight when the written law is on your side.

NRS 202.257 Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.

1. It is unlawful for a person who:

(a) Has a concentration of alcohol of 0.10 or more in his blood or breath; or

(b) Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely exercising actual physical control of a firearm,
to have in his actual physical possession any firearm. This prohibition does not apply to the actual physical possession of a firearm by a person who was within his personal residence and had the firearm in his possession solely for self-defense.

[Frank Ettin]

Originally Posted by WoofersInc

Fortunately for me, my state has actually listed this in it's statutes.....

Nope, I'm afraid it won't work that way. NRS 202.257 will prevent you from being charged with a crime if you are in your home with a BAC of 0.10 or greater and have possession of a firearm for self defense. See edit below for clarification.

However, if you used your gun in what you claim was self defense, but you have been charged and are on trial for aggravated assault or manslaughter, NRS 202.257 will not keep the prosecutor from ---

[1] Putting on an expert witness to testify about the effects of alcohol on one's perception and judgment;

[2] Putting into evidence an expert opinion that your perception and judgment were impaired as a result of the alcohol you had consumed; and

[3] Using that to attack your credibility and your claim that you had reasonably determined that your use of lethal force was necessary and justified.

[EDIT] Looking this over, I see that I need to clarify the first paragraph. It really should read as follows:

Nope, I'm afraid it won't work that way. Under NRS 202.257, it is a crime (a misdemeanor) to have possession of a gun if your BAC is 0.10 or greater. NRS 202.257 also protects you against being charged with that crime if you are in your residence and have possession of the firearm for self defense.

[Glenn E. Meyer]

Not hard to find an expert - there are journal articles out there that tested shooting decisions under the influence and find impaired judgment on the shoot/no shoot decision in simulation.

The data exist and be easily found by someone with access to the scholarly search engines.

[highvel]

Just hope and pray that it never happens!
I think using deadly force is the most important decision you will ever make in life, dont make it lightly!