Under Influence | Delaware Concealed Carry

Carrying Under the Influence in Delaware

Delaware puts a number in the statute. Under 11 Del. C. § 1460, you commit a crime when you possess a firearm or projectile weapon in a public place while under the influence of alcohol or drugs. The offense reaches projectile weapons alongside firearms, and 11 Del. C. § 222(28) defines "projectile weapon" for the Criminal Code as a bow, a crossbow, an airbow, a weapon designed to discharge or project an arrow, crossbow bolt, or spear, or an airgun that discharges or projects a pellet, slug, or bullet larger than .177 caliber. The statute defines "under the influence" itself, and one of the two ways to meet that definition is a blood alcohol figure of ".08 or more grams of alcohol per hundred milliliters of blood, or an amount of alcohol in a sample of breath equivalent to .08 or more grams per 210 liters of breath" (§ 1460(b)(4)a.).

A concealed carry license does not exempt you. Section 1460 contains no exception for a licensee under § 1441, and no exception for open carry. It reaches a licensee carrying concealed in a restaurant, a bar, or a park the same way it reaches anyone else carrying there.

The two ways the State can prove impairment

The .08 route. At .08 or above, the State does not have to show you looked or acted drunk. Section 1460(b)(4)a. also builds in a lookback: you are guilty "without regard to the person's alcohol concentration at the time of possession" if your concentration is .08 or more within 4 hours after you were found in possession, and that concentration is the result of alcohol present in or consumed by you while you had the firearm. A rising BAC measured after the stop can support the charge.

The manifest impairment route. Section 1460(b)(4)b. reaches anyone "manifestly under the influence" of alcohol, of any illicit or recreational drug as defined in § 4177(c) of Title 21, or of any other drug not administered or prescribed by a physician, "to the degree that the person may be in danger or endanger other persons or property, or annoy persons in the vicinity." There is no number attached to this prong. The "manifestly under the influence" and "to the degree that" clauses are word for word the ones Delaware uses for public intoxication in 11 Del. C. § 1315, though the drug lists are not the same: § 1315 says "alcohol or narcotics or any other drug not administered or prescribed to be taken by a physician," while § 1460(b)(4)b. substitutes any illicit or recreational drug as defined in § 4177(c) of Title 21. Two practical consequences follow. First, a BAC under .08 is not a safe harbor, because the manifest prong stands on its own. Second, for drugs there is no per se threshold at all in § 1460, so a drug case turns on manifest impairment to the degree the statute describes rather than on a cutoff. Section 1460(c) separately permits an officer to test for the presence of illicit or recreational drugs, but the section does not make a test part of what the State must prove.

Section 1460(b)(4)b. carves out one situation: you are not "under the influence" if you did not use the illicit or recreational drug before or during the alleged violation and used it only afterward, and only that later use put the substance in your blood within the 4 hour window.

Where the statute reaches

The offense element is possession "in a public place." Section 1460(b)(3) defines that as a place to which the public or a substantial group of persons has access, and lists highways, transportation facilities, schools, places of amusement, parks, playgrounds, restaurants, bars, taverns, and the hallways, lobbies, and other portions of apartment houses and hotels that are not rooms or apartments designed for actual residence. Your apartment is not a public place under that definition. The hallway outside it is.

"Possess" is defined broadly in § 1460(b)(2): the item is under your dominion and authority and is physically available and accessible to you at the relevant time. You do not have to be touching it.

The two affirmative defenses

Section 1460(a) gives you two, and it labels each of them "an affirmative defense to prosecution under this section":

• The firearm or projectile weapon was not readily operable, meaning under § 1460(b)(1) that it is disassembled, broken down, or stored in a manner to prevent its immediate use.
• You were not in possession of ammunition for it.

Both describe a gun you cannot use. Neither helps a licensee carrying for defense.

Testing and refusal

Under § 1460(c), an officer with probable cause to believe you violated the section may take reasonable steps to conduct chemical testing for alcohol concentration or the presence of illicit or recreational drugs, with or without your consent. Your refusal to submit is admissible in any trial arising from the violation.

Grading and sentence

The Superior Court has original and exclusive jurisdiction over a § 1460 violation (§ 1460(a)).

What a conviction does to your license and your gun rights

This is where the second offense turns into a permanent problem.

A class G felony conviction makes you a person prohibited under 11 Del. C. § 1448(a)(1), which covers any person convicted of a felony. Once you are prohibited under § 1448, your carry license is gone automatically: § 1441(m) provides that any license issued under § 1441 "shall be void, and is automatically repealed by operation of law, if the licensee is or becomes prohibited from owning, possessing or controlling a deadly weapon as specified in § 1448 of this title." No hearing, no notice requirement in the text. Carrying concealed after that point is carrying without a license under 11 Del. C. § 1442, a class D felony when the weapon is a firearm or projectile weapon.

Possession while prohibited is itself charged under § 1448(b) and graded by § 1448(c) as a class D felony for a firearm or ammunition under paragraphs (a)(1) through (a)(8). The relief valve in § 1448(d), which restores rights 5 years after conviction, applies only to a person prohibited solely because of a conviction that is not a felony. It does not reach the class G felony second offense.

A first offense under § 1460 is a class A misdemeanor and is not on the § 1448(a) list on its own. It still sits in your criminal history, and § 1441 licensing is discretionary: the Superior Court "may or may not, in its discretion, approve any application" (§ 1441(d)), the application must be supported by a certificate of 5 respectable citizens stating that you are a person "of full age, sobriety and good moral character" (§ 1441(a)(2)), and on renewal the Court "may inquire into the renewal request and deny the same for good cause shown" (§ 1441(a)(5)a.). Sobriety is written into the license standard. Section 1441 contains no separate suspension procedure keyed to intoxication, so the operative administrative consequences are the discretionary ones just described plus the automatic voiding in § 1441(m).

Drugs, marijuana, and the federal prohibition

Federal law does not ask whether you are impaired right now. Under 18 U.S.C. § 922(g)(3) it is unlawful for a person "who is an unlawful user of or addicted to any controlled substance" to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce," and § 922(d)(3) bars transferring one to that person. The implementing definition at 27 C.F.R. § 478.11 turns on a pattern, not a moment: regular unlawful use over an extended period continuing into the present, with "sufficient regularity and recency to indicate that the individual is actively engaged in such conduct," and it states expressly that a person may be an unlawful current user even though the substance is not being used at the precise time the firearm is possessed. Isolated or sporadic use does not qualify.

Two points follow for anyone carrying in Delaware. Alcohol is not a controlled substance for this purpose: 27 C.F.R. § 478.11 defines "controlled substance" to include marijuana, depressants, stimulants, and narcotic drugs, and to exclude distilled spirits, wine, malt beverages, and tobacco. So a drinker is exposed under § 1460, not under § 922(g)(3). Marijuana is the reverse. It remains listed in Schedule I at 21 U.S.C. § 812, and the regulation names it as a controlled substance, so a regular user is an unlawful user federally regardless of what state law permits.

Delaware has its own overlap at 11 Del. C. § 1448(a)(9), which makes a person prohibited if the deadly weapon is a semi-automatic or automatic firearm or a handgun and the person at the same time possesses a controlled substance in violation of § 4763 of Title 16. Section 1448(a)(3) separately prohibits any person convicted of the unlawful use, possession, or sale of a narcotic drug or controlled substance as defined in Chapter 47 of Title 16.

Related rules worth knowing

• Qualified active and retired law enforcement officers carrying under Delaware's LEOSA implementation must not be "under the influence of alcohol or another intoxicating or hallucinatory drug or substance," per 11 Del. C. § 1441A(c)(5) and § 1441B(c)(6). The federal provisions carry the identical element at 18 U.S.C. § 926B and § 926C.
• There is a separate bar on selling to an intoxicated person, and it is narrower than "any firearm." Section 903 of Title 24 provides that "No person shall sell to a person under the age of 21 or any intoxicated person any of the articles referred to in the first paragraph of § 901 of this title," and the first paragraph of § 901 names "any pistol or revolver, or stiletto, steel or brass knuckles, or other deadly weapon made especially for the defense of one's person." A handgun sale to an intoxicated buyer is inside that bar. Rifles and shotguns are not among the articles that paragraph names. A violation of § 903 is punishable under 24 Del. C. § 906 by a fine of not more than $500 or imprisonment of not more than 6 months, or both.
• Voluntary intoxication is not a defense to any criminal charge under 11 Del. C. § 421, and evidence of it is inadmissible to prove mental illness under § 422. Involuntary intoxication is treated differently. Section 423 provides that "In any prosecution for an offense it is a defense that, as a result of intoxication which is not voluntary, the actor at the time of the conduct lacked substantial capacity to appreciate the wrongfulness of the conduct or to perform a material element of the offense, or lacked sufficient willpower to choose whether the person would do the act or refrain from doing it." Section 424(2) draws the line: intoxication is voluntary when it is "caused by substances which the actor knowingly introduces into the actor's body, the tendency of which to cause intoxication the actor knows or should know," unless taken on medical advice or under qualifying duress.
• A first § 1460 offense is a class A misdemeanor, so it falls inside 11 Del. C. § 4213(c), which provides that "Upon arrest for any crime which is not a felony under this title or Title 16, an arrestee who believes that the arrestee is under the influence of drugs as defined in subsection (a) of this section shall have the right to request immediate admission to a drug detoxification center." Section 4213(a)(1) defines a person under the influence of drugs, for that section only, as one whose powers of self-control have been substantially impaired by a drug described in Chapter 47 of Title 16. Under § 4213(c)(1), the request itself is not admissible in evidence in any criminal prosecution against the arrestee.

Scope limits to respect

Section 1460's alcohol threshold applies to possession in a public place. Do not read it as a general statewide .08 rule covering conduct on private property, and do not read the absence of a drug number as tolerance, because the manifest impairment prong covers drugs without one. The definition of "illicit or recreational drug" is not written into § 1460 itself: § 1460(b)(4)b. takes it from § 4177(c) of Title 21.

Key statutes