Constructive Possession of a Firearm while Drunk is OK

A person cannot be prosecuted for constructive possession of a firearm while intoxicated in his or her own home.

MCL 750.237 prohibits a person from possession or use of a firearm while under the influence of alcohol. Possession of a firearm can be actual or constructive. A person has constructive possession of a firearm when the person has knowledge of the firearm’s location and the firearm is reasonably accessible to the person.

For an example of constructive possession of a firearm: if you keep your firearm in a safe in your bedroom or under your pillow and you are at home then you have constructive possession of the firearm because you could easily retrieve it.

For an example of actual possession of a firearm: if the firearm is in your hand or in your pocket you have actual possession of it.

In People v. DeRoche, officers responded to a trouble call at the defendant’s home. The officers were told that the defendant had been drinking and was upstairs in the home. The officers were also told that a gun was taken from the defendant and hidden in the laundry room. The defendant was arrested and prosecuted for violating MCL 750.237 based on the theory he was in constructive possession of a firearm while drunk.

The district court determined there was no evidence the defendant was in actual physical possession of the firearm and dismissed the charges based on the Second Amendment to the United States Constitution. The Michigan Court of Appeals upheld the district court’s dismissal.

The Court proclaimed that the right to possess a handgun in a person’s home as a means of self-defense, while not unlimited, is protected by the Second Amendment. The Court further noted that, aside from MCL 750.237, the defendant was not engaged in any unlawful behavior nor were there any facts to suggest he possessed the gun for any unlawful purpose. The Court also pointed out that at the time the officers were able to establish the defendant’s level of intoxication, the defendant’s possession of the firearm was constructive rather than actual.

The Court concluded the government cannot justify infringing on the defendant’s Second Amendment right to possess a handgun in his home simply because the defendant was intoxicated in the general vicinity of the firearm.

As a result of this ruling, a person should not be arrested for violating MCL 750.237 because the person has constructive possession of a firearm while drunk in their home.

It’s important to note that the court did not say that it was okay to be drunk while in actual possession of a firearm, so a person could still be prosecuted for being in actual possession of a firearm while intoxicated in their home.

If you have been charged with a firearm crime contact gun lawyer, Aaron J. Boria today for a free consultation (734) 453-7806

Aaron Boria - I am a motivated Michigan criminal defense lawyer located in Metro Detroit. Practicing law is my passion. Helping others is motivating and rewarding. Feel free to contact me anytime!

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