Carrying Under the Influence - Michigan

Overview

If you carry a concealed pistol under a CPL in Michigan, the legal threshold is 0.02 BAC, not 0.08. Two separate statutes can apply, and CPL holders should understand both.

• MCL 28.425k is the controlling rule for CPL holders while carrying a concealed pistol or a portable electro-muscular disruption device. The threshold is 0.02 BAC, with tiered penalties that reach a misdemeanor at 0.08 and above. Acceptance of the CPL is implied consent to chemical testing.
• MCL 750.237 is the general firearm-under-the-influence statute in the Michigan Penal Code. It uses a 0.08 BAC threshold and applies to anyone who carries, possesses, controls, uses, or discharges a firearm while intoxicated, regardless of CPL status. A CPL holder at 0.08 or above can face charges under both statutes.

A retired law enforcement officer who carries concealed under a federal certification is governed by a separate tier under MCL 28.519, described below.

CPL Holders: MCL 28.425k (0.02 BAC Threshold)

For anyone carrying a concealed pistol under a CPL, the operative under-the-influence rule is MCL 28.425k, not MCL 750.237. Under MCL 28.425k(1), acceptance of a CPL constitutes implied consent to a chemical analysis of breath, blood, or urine. This implied consent also applies to individuals listed in section 12a of the act.

Prohibited Conduct

Under MCL 28.425k(2), an individual shall not carry a concealed pistol or a portable device that uses electro-muscular disruption technology while under the influence of alcoholic liquor or a controlled substance, or while having a prohibited bodily alcohol content. The statute defines "under the influence" as a state in which the individual's ability to properly handle a pistol or to exercise clear judgment regarding the use of that pistol was substantially and materially affected by the consumption of alcoholic liquor or a controlled substance (MCL 28.425k(8)(c)).

Tiered Penalties for CPL Holders

MCL 28.425k(2) sets three distinct tiers based on bodily alcohol content. Do not collapse them: the .08 line separates a misdemeanor from a civil infraction, and the .10 line separates CPL revocation from a 3-year suspension.

For each tier, the Department of State Police enters the suspension or revocation into the Law Enforcement Information Network.

Safe Transport Exception (CPL With Any BAC)

Under MCL 28.425k(3), a CPL holder who has any bodily alcohol content may still transport a pistol in the locked trunk of a motor vehicle. If the vehicle has no trunk, the pistol must be transported unloaded in a locked compartment or container that is separated from the ammunition for that pistol. The same rule applies on a vessel. The exception extends to transporting a portable electro-muscular disruption device in a locked trunk, compartment, or container.

Chemical Testing

Under MCL 28.425k(4), a peace officer who has probable cause to believe an individual is carrying a concealed pistol or a portable electro-muscular disruption device in violation of the section may require a chemical analysis of breath, blood, or urine.

Before requiring the test, MCL 28.425k(5) requires the officer to inform the individual that:

• The individual may refuse the chemical analysis, but if the individual refuses, the officer may obtain a court order requiring the test, and the refusal results in the CPL being suspended for 6 months.
• If the individual submits, he or she may obtain an independent chemical analysis from a person of his or her own choosing.

Under MCL 28.425k(7), a refusal is itself a state civil infraction with a $100 fine and a 6-month CPL suspension, separate from any penalty for the underlying conduct. Specimen collection and testing follow the same procedures used for alcohol-related and controlled-substance-related driving violations under the Michigan Vehicle Code, MCL 257.1 to 257.923 (MCL 28.425k(6)).

General Penal Code Statute: MCL 750.237

Prohibited Conduct

Under MCL 750.237(1), an individual shall not carry, have in possession or under control, use in any manner, or discharge a firearm under any of the following circumstances:

1. The individual is under the influence of alcoholic liquor, a controlled substance, or a combination of both.
2. The individual has an alcohol content of 0.08 or more grams per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
3. Because of the consumption of alcoholic liquor, a controlled substance, or a combination of both, the individual's ability to use a firearm is visibly impaired.

Penalties

Under MCL 750.237(3), "serious impairment of a body function" includes, but is not limited to:

• A comatose state that lasts for more than 3 days
• Measurable brain damage or mental impairment
• A skull fracture or other serious bone fracture
• Subdural hemorrhage or subdural hematoma
• Loss of an organ

Chemical Testing

Under MCL 750.237(5), a peace officer who has probable cause to believe an individual violated the section may require a chemical analysis of breath, blood, or urine. An individual who is afflicted with hemophilia, diabetes, or a condition requiring the use of an anticoagulant under the direction of a physician is not required to submit to a chemical analysis of his or her blood.

Before requiring a test, MCL 750.237(6) requires the officer to inform the individual that:

• The individual may refuse, but if he or she refuses, the officer may obtain a court order requiring the test.
• If the individual submits, he or she may obtain an independent chemical analysis from a person of his or her own choosing.

Additional points on testing:

• Under MCL 750.237(7), the officer's failure to provide the required advisements does not render the test results inadmissible in a criminal prosecution, a civil action, or an administrative proceeding arising out of a violation.
• Under MCL 750.237(8), specimen collection and testing follow the same procedures used for alcohol-related and controlled-substance-related driving violations under the Michigan Vehicle Code, MCL 257.1 to 257.923.

Additional Charges

Under MCL 750.237(9), a violation does not prevent the individual from being charged with, convicted of, or sentenced for any other violation of law arising out of the same transaction.

Impact on CPL Eligibility: MCL 28.425b(7)(h)(ix)

Under MCL 28.425b(7)(h), a misdemeanor conviction for an enumerated offense in the 8 years immediately preceding a CPL application disqualifies the applicant. A pending charge for an enumerated misdemeanor at the time of application also disqualifies the applicant. A conviction under MCL 750.237 (possessing a firearm while under the influence of intoxicating liquor or a controlled substance) is one of the enumerated offenses, listed at MCL 28.425b(7)(h)(ix). A conviction or pending charge for that offense within the lookback period blocks issuance of a concealed pistol license.

Retired Law Enforcement Officers: MCL 28.519

Retired law enforcement officers who hold a certificate to carry a concealed firearm under 18 USC 926C are subject to a separate set of under-the-influence provisions under 2008 PA 537 (MCL 28.511 to 28.523). The operative rule is MCL 28.519.

Implied Consent

Under MCL 28.519(1), acceptance of a certificate issued under the act constitutes implied consent to submit to a chemical analysis.

Prohibited Conduct

Under MCL 28.519(2), a certificate holder shall not carry a concealed firearm while under the influence of alcoholic liquor or a controlled substance, or while having a prohibited bodily alcohol content.

Tiered Penalties for Certificate Holders

Safe Transport Exception

Under MCL 28.519(3), the statute does not prohibit a certified individual who has any bodily alcohol content from transporting a firearm in the locked trunk of a motor vehicle. If the vehicle has no trunk, the firearm must be transported unloaded in a locked compartment or container that is separated from the ammunition. The same rule applies on a vessel.

Testing Procedures

Under MCL 28.519(4), a peace officer with probable cause may require a chemical analysis. Before requiring the test, MCL 28.519(5) requires the officer to inform the certificate holder that:

• The holder may refuse, but if he or she refuses, the officer may obtain a court order, and the refusal may result in certificate revocation.
• If the holder submits, he or she may obtain an independent analysis from a person of his or her own choosing.

Under MCL 28.519(7), if a certificate holder refuses a chemical test, the officer must promptly report the refusal in writing to the commission. Under MCL 28.519(8), if the test indicates any bodily alcohol content while the holder was carrying a concealed firearm, the officer must promptly report the violation in writing to the commission.

Hunting While Intoxicated: MCL 750.167a

Under MCL 750.167a, any person who is drunk or intoxicated while hunting with a firearm or other weapon under a valid hunting license is deemed a disorderly person. Upon conviction:

• The weapon is confiscated and delivered to the Department of Natural Resources for disposition in the same manner as weapons confiscated for other game-law violations.
• In addition to any punishment imposed under MCL 750.168 (the disorderly persons penalty), the person is forbidden to apply for or possess a hunting license for 3 years following the date of conviction.
• A violation of the conditions of that sentence is a misdemeanor.

Key Definitions: MCL 750.222

The penal code chapter that contains MCL 750.237 defines its terms in MCL 750.222:

• "Alcoholic liquor" means that term as defined in section 105 of the Michigan Liquor Control Code, MCL 436.1105 (MCL 750.222(a)).
• "Controlled substance" means a controlled substance or controlled substance analogue as defined in section 7104 of the Public Health Code, MCL 333.7104 (MCL 750.222(d)).
• "Firearm" means any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive (MCL 750.222(e)).

MCL 28.425k(8) uses the same definitions of "alcoholic liquor" (MCL 436.1105) and "controlled substance" (MCL 333.7104).

Marijuana and Firearms

Marijuana is a controlled substance under Michigan law. MCL 750.222(d) defines "controlled substance" by reference to MCL 333.7104 of the Public Health Code. Because both MCL 750.237 and MCL 28.425k prohibit carrying, possessing, or using a firearm while under the influence of a controlled substance, being under the influence of marijuana while doing so is prohibited under either statute regardless of a person's status as a medical marijuana cardholder. Federal law separately restricts firearm possession by unlawful users of controlled substances, and marijuana remains federally controlled. Anyone relying on a medical marijuana registration should treat firearm carry while under the influence as prohibited.

Relevant Statute References