Carrying Under the Influence | Delaware Concealed Carry

Carrying Under the Influence in Delaware

Delaware law specifically prohibits the possession of firearms or projectile weapons while under the influence of alcohol or drugs. This is a standalone criminal offense codified in Delaware's Criminal Code, separate from and in addition to any other weapons charges.

The Core Prohibition

Under 11 Del. C. § 1460, a person is guilty of possession of a firearm or projectile weapon while under the influence when the person possesses a firearm or projectile weapon in a public place while under the influence of alcohol or drugs.

This applies to all persons — whether carrying with a concealed deadly weapons license (CCDW), carrying openly, or otherwise lawfully in possession of a firearm. Having a valid CCDW license does not exempt a person from this prohibition.

Key Definitions

The statute provides specific definitions that determine when a violation occurs, per § 1460(b):

"Under the Influence of Alcohol or Drugs" Means:

• Alcohol threshold: Having a blood alcohol concentration (BAC) of .08 or more grams of alcohol per 100 milliliters of blood, or .08 or more grams per 210 liters of breath. A person is guilty regardless of their BAC at the exact time of possession if their BAC is .08 or more within 4 hours after being found in possession, and that concentration resulted from alcohol present when the person was in possession of the firearm.

• Manifest intoxication: Being manifestly under the influence of alcohol, any illicit or recreational drug (as defined in 21 Del. C. § 4177(c)), or 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.

• Important exception for post-possession drug use: A person is not considered "under the influence" if they did not use or consume the illicit or recreational drug before or during the alleged violation, but only consumed it after the alleged violation, and only that post-violation consumption caused the drug to be present in their blood within 4 hours of the alleged violation.

"Public Place" Means:

A place to which the public or a substantial group of persons has access, including but not limited to:

• Highways
• Transportation facilities
• Schools
• Places of amusement
• Parks and playgrounds
• Restaurants, bars, and taverns
• Hallways, lobbies, and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence

"Possess" / "Possession" / "Possesses" Means:

The person has the item under their dominion and authority, and the item is physically available and accessible to the person at the relevant time.

"Not Readily Operable" Means:

The firearm or projectile weapon is disassembled, broken down, or stored in a manner to prevent its immediate use.

Affirmative Defenses

Per § 1460(a), it is an affirmative defense (meaning the defendant bears the burden of proving it) that:

1. The firearm or projectile weapon was not readily operable (i.e., disassembled, broken down, or stored to prevent immediate use), OR
2. The person was not in possession of ammunition for the firearm or projectile weapon.

Note: These are defenses to prosecution — they do not make the conduct legal, but they can result in acquittal if proven.

Chemical Testing

Per § 1460(c), a law-enforcement officer who has probable cause to believe a person has violated this section may, with or without the person's consent, take reasonable steps to conduct chemical testing to determine:

• The person's alcohol concentration, or
• The presence of illicit or recreational drugs

Refusal to submit to chemical testing is admissible as evidence in any trial arising from a violation of this section.

Penalties

Per § 1460(d):

Delaware's sentencing framework for these classifications (per 11 Del. C. § 4205) provides:

• Class A misdemeanor: Up to 1 year of imprisonment
• Class G felony: Up to 2 years of imprisonment

Jurisdiction

The Superior Court has original and exclusive jurisdiction over violations of § 1460, per the statute itself. This means these cases are handled in Superior Court rather than in the Court of Common Pleas or Justice of the Peace Court.

LEOSA and Under-the-Influence Restrictions

Delaware's state implementation of the federal Law Enforcement Officers Safety Act (LEOSA) — codified at 11 Del. C. § 1441A (active officers) and 11 Del. C. § 1441B (retired officers) — explicitly requires that qualified law enforcement officers and qualified retired law enforcement officers must not be under the influence of alcohol or another intoxicating or hallucinatory drug or substance to carry concealed under LEOSA. Specifically:

• Per § 1441A(c)(5): A qualified law-enforcement officer must not be "under the influence of alcohol or another intoxicating or hallucinatory drug or substance."
• Per § 1441B(c)(6): A qualified retired law-enforcement officer must not be "under the influence of alcohol or another intoxicating or hallucinatory drug or substance."

This means even active and retired law enforcement officers carrying under LEOSA lose their authority to carry concealed if they are under the influence.

Practical Considerations for Concealed Carry Permit Holders

• There is no "legal limit" below .08 that guarantees safety from prosecution. The "manifest intoxication" prong of the definition does not require a specific BAC — if you are visibly impaired to the degree that you may endanger others or annoy persons nearby, you can be charged regardless of your BAC number.
• The .08 BAC threshold mirrors Delaware's DUI standard and creates a per se violation — meaning at .08 or above, the prosecution does not need to prove you were visibly impaired.
• The 4-hour lookback window means that even if your BAC was below .08 at the exact moment of possession, a test showing .08 or above within 4 hours can support a conviction if the alcohol was present during possession.
• The law applies in "public places" broadly defined — this includes restaurants, bars, parks, sidewalks, and common areas of apartment buildings.
• Storing your firearm to make it not readily operable (e.g., disassembled or locked in a case preventing immediate use) or not having ammunition for it are affirmative defenses, but relying on these defenses means you are already facing criminal charges.

Key Statutes