Virginia Carrying Under the Influence Laws

The Headline

Virginia's carry-while-impaired rule is narrower than most states. Va. Code 18.2-308.012(A) makes it a Class 1 misdemeanor for a person permitted to carry a concealed handgun to carry that handgun in a public place while under the influence of alcohol or illegal drugs. The statute sets no numeric blood-alcohol threshold, does not by its terms reach open carry, and does not reach concealed carry inside a private residence. Conviction triggers mandatory revocation of the concealed handgun permit (CHP) and a five-year bar on reapplying for a CHP.

Subsection (B) of the same statute makes it a Class 2 misdemeanor to consume an alcoholic beverage while carrying a concealed handgun on the premises of a restaurant or club licensed under Title 4.1 for on-premises consumption. Carrying concealed in the restaurant is itself lawful for a CHP holder. What is criminal is consuming alcohol while doing so. The provision does not apply to a federal, state, or local law-enforcement officer.

The same conduct can also expose the carrier to other Virginia charges (reckless handling under Va. Code 18.2-56.1, brandishing under Va. Code 18.2-282, DWI under Va. Code 18.2-266) and to federal liability under 18 U.S.C. 922(g)(3) where the impairment results from controlled-substance use.

The Operative Statute: Va. Code 18.2-308.012(A)

The statutory text, subsection (A):

A. Any person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor. Conviction of any of the following offenses shall be prima facie evidence, subject to rebuttal, that the person is "under the influence" for purposes of this section: manslaughter in violation of 18.2-36.1, maiming in violation of 18.2-51.4, driving while intoxicated in violation of 18.2-266, public intoxication in violation of 18.2-388, or driving while intoxicated in violation of 46.2-341.24. Upon such conviction that court shall revoke the person's permit for a concealed handgun and promptly notify the issuing circuit court. A person convicted of a violation of this subsection shall be ineligible to apply for a concealed handgun permit for a period of five years.

Four operative elements drive the analysis.

1. The actor must be a person permitted to carry a concealed handgun. The statute is keyed to CHP holders. A non-permit holder carrying concealed unlawfully is charged under Va. Code 18.2-308 (the general concealed-carry prohibition), not Va. Code 18.2-308.012(A). A CHP holder carrying concealed inside his own home or place of business is also outside subsection (A) because the conduct is not "in a public place." See CONCEALED_CARRY for the home and place-of-business exemptions.

2. The conduct must be carrying the handgun in a public place. Va. Code 18.2-308.012 does not define "public place," so the ordinary meaning controls: a place open to or accessible by the public, such as a street, sidewalk, park, parking lot, retail business, or licensed establishment. A private residence is not a public place.

3. The actor must be under the influence of alcohol or illegal drugs. The statute uses an influence standard, not a fixed blood-alcohol number. Virginia statute is silent on any specific BAC for this offense, so the factfinder evaluates impairment on the totality of the circumstances. The phrase "alcohol or illegal drugs" is narrower than the DWI statute (Va. Code 18.2-266), which reaches any self-administered intoxicant. By its terms, subsection (A) does not reach impairment from a lawful prescription drug, though the rebuttable-presumption mechanism below and the reckless-handling statute (Va. Code 18.2-56.1) can still reach an impaired carrier.

4. The five prima facie predicate convictions. The second sentence of subsection (A) is a presumption rule, not an added element. Conviction of any of the following five offenses is prima facie (rebuttable) evidence that the carrier was "under the influence":

A prosecutor charging Va. Code 18.2-308.012(A) can put a conviction under any of those five statutes into evidence to help establish the impairment element. The defendant may rebut with evidence that he was not in fact under the influence at the time of the concealed carry.

Mandatory Revocation and Five-Year Bar

Subsection (A) imposes two automatic consequences on conviction.

Mandatory revocation. "Upon such conviction that court shall revoke the person's permit for a concealed handgun and promptly notify the issuing circuit court." The word is "shall." There is no trial-court discretion. Revocation follows conviction, and the issuing circuit court is notified.

Five-year reapplication bar. "A person convicted of a violation of this subsection shall be ineligible to apply for a concealed handgun permit for a period of five years." This bar runs from the date of conviction. It is independent of the disqualifiers at Va. Code 18.2-308.09. In a typical case a parallel disqualifier also applies: a DWI or public-drunkenness conviction triggers the three-year bar at Va. Code 18.2-308.09(9), and a marijuana or controlled-substance offense triggers the three-year bar at Va. Code 18.2-308.09(19).

A separate and broader disqualifier at Va. Code 18.2-308.09(8) covers anyone "addicted to, or is an unlawful user or distributor of, marijuana, synthetic cannabinoids, or any controlled substance." A controlled-substance user is categorically ineligible for a Virginia CHP regardless of any conviction under Va. Code 18.2-308.012(A). See PERMIT_BASICS for the full disqualifier list.

Va. Code 18.2-308.012(B): Consuming Alcohol While Carrying Concealed

The statutory text, subsection (B):

B. No person who carries a concealed handgun onto the premises of any restaurant or club as defined in 4.1-100 for which a license to sell and serve alcoholic beverages for on-premises consumption has been granted by the Virginia Alcoholic Beverage Control Authority under Title 4.1 may consume an alcoholic beverage while on the premises. A person who carries a concealed handgun onto the premises of such a restaurant or club and consumes alcoholic beverages is guilty of a Class 2 misdemeanor. However, nothing in this subsection shall apply to a federal, state, or local law-enforcement officer.

Four operative pieces.

The covered premises. Va. Code 4.1-100 defines "restaurant" and "club" by reference to the Virginia ABC licensing scheme. Subsection (B) reaches both, so long as the establishment holds an ABC license to sell and serve alcohol for on-premises consumption. This captures the everyday bar-and-grill and the standalone bar or private club holding an on-premises license. A retail store that sells but does not serve alcohol for on-premises consumption is not covered.

The covered conduct is consuming, not carrying. Carrying a concealed handgun into the licensed restaurant is lawful for a CHP holder. The statute keeps the firearm permitted on the premises but bars the drinking.

Penalty grade. A Class 2 misdemeanor is punishable by confinement in jail for not more than six months and a fine of not more than $1,000, either or both (Va. Code 18.2-11(b)).

Law-enforcement exception. A federal, state, or local law-enforcement officer is exempt. The text names that category without further qualification.

The practical rule in a Virginia restaurant or bar that serves alcohol on-premises: a CHP holder may carry concealed but may not drink. A holder who intends to drink should secure the firearm elsewhere. The rules for storing a firearm in a vehicle are governed by VEHICLE_CARRY.

Open Carry While Under the Influence

Va. Code 18.2-308.012(A) reaches concealed carry by a person permitted to carry a concealed handgun. By its terms it does not reach open carry. The asymmetric result: a CHP holder carrying concealed in public while under the influence commits a Class 1 misdemeanor with mandatory revocation and a five-year bar, while open carry under the influence is not an offense under Va. Code 18.2-308.012.

That gap is not a safe harbor. Three other charges remain available regardless of carry method.

Federal 18 U.S.C. 922(g)(3). This federal prohibitor makes it unlawful for any person "who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))" to ship, transport, possess, or receive any firearm or ammunition in or affecting commerce. A carrier whose impairment results from an illegal controlled substance is exposed to a federal possession charge regardless of how the handgun is carried.

Reckless handling under Va. Code 18.2-56.1. "It shall be unlawful for any person to handle recklessly any firearm so as to endanger the life, limb or property of any person." A violation is a Class 1 misdemeanor. Handling a firearm in public while impaired, such as drawing or pointing it, can be charged here whether carry is concealed or open. The charge does not require any impairment finding and does not require a CHP. Subsection A1 of the same statute raises the offense to a Class 6 felony where the reckless handling causes serious bodily injury resulting in permanent and significant physical impairment.

DWI and related vehicle offenses. A carrier who operates a motor vehicle while impaired can be charged with DWI under Va. Code 18.2-266 independently, and that conviction both feeds back into Va. Code 18.2-308.012(A) as a prima facie impairment predicate (if the carrier was also carrying concealed in public at the time) and triggers the three-year CHP ineligibility under Va. Code 18.2-308.09(9).

See OPEN_CARRY for the parallel discussion.

Hunting While Under the Influence: Va. Code 18.2-285

Virginia separately criminalizes hunting with a firearm while impaired. Va. Code 18.2-285 makes it a Class 1 misdemeanor to hunt wildlife with a firearm, bow and arrow, slingbow, arrowgun, or crossbow while (i) under the influence of alcohol; (ii) under the influence of any narcotic drug or other self-administered intoxicant or drug to a degree that impairs the ability to hunt safely; or (iii) under the combined influence of alcohol and any drug to a degree that impairs the ability to hunt safely. Conservation police officers, sheriffs, and all other law-enforcement officers are authorized to enforce it. This rule applies independently of CHP status and independently of the concealed-versus-open distinction.

Federal Prohibitor: 18 U.S.C. 922(g)(3)

18 U.S.C. 922(g)(3) prohibits any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act, 21 U.S.C. 802) from shipping, transporting, possessing, or receiving any firearm or ammunition in or affecting interstate commerce. A knowing violation of subsection (g) is punishable by up to 15 years in prison under 18 U.S.C. 924(a)(8).

The "unlawful user" framework reaches active controlled-substance use regardless of state authorization. Marijuana remains a Schedule I controlled substance under federal law, and the Bureau of Alcohol, Tobacco, Firearms and Explosives has taken the position that marijuana use, including state-authorized medical or recreational use, triggers 922(g)(3) status. Virginia's decriminalization of recreational marijuana possession at the state level does not change federal status under 922(g)(3).

The Virginia CHP application asks whether the applicant is an unlawful user of or addicted to a controlled substance. A knowingly false statement in the records required to be kept by a federal firearms licensee, or in applying for a license or relief from disability, is a federal felony under 18 U.S.C. 924(a)(1)(A). For Virginia carriers the practical takeaway is unchanged: an active controlled-substance user, including a state-authorized medical marijuana patient, is in federal jeopardy whether carrying openly, concealed, at home, in a vehicle, or in the field. The Virginia carry framework does not insulate against federal 922(g)(3) liability.

Penalty Summary

How This Section Fits with Other Rules

The Operative Rule

If you are a Virginia CHP holder, the practical rule has three parts.

1. Do not carry concealed in public while under the influence of alcohol or illegal drugs. The offense is a Class 1 misdemeanor with mandatory permit revocation and a five-year reapplication bar. A contemporaneous or recent conviction for DWI, public intoxication, DWI manslaughter, DWI maiming, or commercial-vehicle DWI can be put into evidence as prima facie proof that you were under the influence at the time.
2. In a restaurant or bar licensed for on-premises alcohol service, carry concealed if you choose, but do not drink. Consuming any alcohol while carrying concealed on those premises is a Class 2 misdemeanor. If you intend to drink, secure the firearm elsewhere.
3. Treat 18 U.S.C. 922(g)(3) as an absolute bar on firearm possession by any active controlled-substance user, including a state-authorized medical marijuana patient. The Virginia CHP framework does not insulate against federal prohibitor liability, and a false answer on the federal records or the CHP application is a separate federal felony.

If you are open-carrying rather than concealing, Virginia statute imposes no analogous under-the-influence offense, but reckless handling under Va. Code 18.2-56.1, brandishing under Va. Code 18.2-282, DWI under Va. Code 18.2-266, public intoxication under Va. Code 18.2-388, and federal 18 U.S.C. 922(g)(3) all remain available charges. The absence of an open-carry statutory analogue is a gap, not a safe harbor.