Using a Firearm While Under the Influence

Florida Statute Section 790.151, prohibits using a firearm while under the influence of an alcoholic beverage or chemical or controlled substance.

To prove the crime of Using a Firearm While Under the Influence, the State must prove the following two elements beyond a reasonable doubt:

• the defendant used a firearm;
• while using the firearm, the defendant was under the influence of an alcoholic beverage, any chemical substance, and controlled substance;
• when affected to the extent that his or her normal faculties were impaired.

The term “use a firearm” means to discharge a firearm or to have a firearm readily accessible for immediate discharge.

The phrase “readily accessible for immediate discharge” means loaded and in a person’s hand.

The crime is charged as a second degree misdemeanor, punishable by up to 60 days in jail or 6 months probation.

Pursuant to Section 790.151(5), the crime of possessing a firearm while impaired or intoxicated does not apply to persons exercising lawful self-defense or defense of one’s property.

This article also explains when a law enforcement officer can request a breath, blood, or urine test related to the use or possession of a firearm, the right to refuse the chemical test, and the right to demand an independent chemical test.

Attorney for Firearm Use While Impaired or Intoxicated in Florida

If you were charged with the crime of using a firearm while under the influence of an alcoholic beverage or a chemical or controlled substances, then contact an experienced criminal defense attorney at Sammis Law Firm.

The attorneys at Sammis Law Firm represent clients on a variety of firearm and weapon crimes including carrying a concealed weapon, improper exhibition of a firearm, or discharging a firearm in public.

Our main office is located in downtown Tampa in Hillsborough County. Our second office is located in New Port Richey in Pasco County.

Call 813-250-0500.

790.153 – Refusing Tests for Impairment or Intoxication

Pursuant to Florida Statute Section 790.153(1)(a), any person who uses a firearm in Florida:

• shall submit to an approved chemical or physical breath test to determine the alcoholic content of the blood and to a urine test to detect the presence of controlled substances;
• if there is probable cause to believe that:
  • the person was using a firearm while under the influence of alcoholic beverages or controlled substances; or
  • that the person is lawfully arrested for any offense allegedly committed while he or she was using a firearm while under the influence of alcoholic beverages or controlled substances.

The breath test shall be incidental to a lawful arrest and administered at the request of a law enforcement officer who has probable cause to believe such person was using the firearm within this state while under the influence of alcoholic beverages.

The urine test shall be incidental to a lawful arrest and administered at a detention facility, mobile or otherwise, which is equipped to administer such tests at the request of a law enforcement officer who has probable cause to believe such person was using a firearm within this state while under the influence of controlled substances.

The urine test shall be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved.

The administration of either a breath test or urine test shall not preclude the administration of the other test.

The refusal to submit to a chemical or physical breath or urine test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding.

This section shall not hinder the taking of a mandatory blood test as outlined in s. 790.155.

Right to Demand Testing After an Arrest for Using a Firearm While Under the Influence

Pursuant to Florida Statute Section 790.153(1)(b), if the arresting officer does not request a chemical or physical test of the person arrested for any offense allegedly committed while the person was using a firearm while under the influence of alcoholic beverages or controlled substances, then:

• such a person may request the arresting officer to have:
  • a chemical or physical test made of the arrested person’s breath for the purpose of determining the alcoholic content of the person’s blood; or
  • a chemical test of urine or blood for the purpose of determining the presence of controlled substances; and,
• if so requested, the arresting officer shall have the test performed.

Pursuant to Florida Statute Section 790.153(1)(c), the provisions of s. 316.1932(1)(f), relating to:

• the administration of tests for determining the weight of alcohol in the defendant’s blood;
• additional tests at the defendant’s expense;
• availability of test information to the defendant or the defendant’s attorney; and
• liability of medical institutions and persons administering such tests are incorporated into this act.

The results of any test administered pursuant to this section for the purpose of detecting the presence of any controlled substance shall not be admissible as evidence in a criminal prosecution for the possession of a controlled substance.

Pursuant to Florida Statute Section 790.153(3), notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical records, information obtained pursuant to this section shall be released to a court, prosecuting attorney, defense attorney, or law enforcement officer in connection with an alleged violation of s. 790.151 upon request for such information.

790.155 – Blood Test for Impairment or Intoxication

Pursuant to Florida Statute Section 790.155(1)(a), notwithstanding any recognized ability to refuse to submit to the tests provided in s. 790.153 a person shall submit:

• to a test of his or her blood for the purpose of determining the alcoholic content thereof or the presence of controlled substances therein;
• if the law enforcement officer makes the request after developing probable cause to believe:
  • that a firearm was used by a person;
  • while under the influence of alcoholic beverages or controlled substances; and
  • the use of the firearm caused the death or serious bodily injury of a human being.

The statute also provides that the law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner.

Under the statute, the term “serious bodily injury” is defined to mean a physical condition which creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Pursuant to Florida Statute Section 790.155(2), the provisions of s. 316.1933(2), relating to blood tests for impairment or intoxication, are incorporated into this act.

Under Florida Statute Section 790.155(3)(a), any criminal charge resulting from the incident giving rise to the officer’s demand for testing should be tried concurrently with a charge of any violation of s. 790.151.

If such charges are tried separately, the fact that such person refused, resisted, obstructed, or opposed testing shall be admissible at the trial of the criminal offense which gave rise to the demand for testing.

This article was last updated on Friday, November 18, 2022.