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Old 10-31-2010, 21:39   #1
Gun Shark
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Castle Doctrine and Alcohol

I posted this in Carry Issues and it was suggested that I ask this here.

I was drinking a margarita and I was thinking if I was impaired and someone broke into my house and I used deadly force other then my alcohol stenched breath, am I or am I not in deep dip.

The point is if I am drunk at home and use deadly force, would I be arrested?
It's better to be judged by 12 than carried by 6.

"No freeman shall ever be debarred the use of arms." --Thomas Jefferson

"Age is an issue of mind over matter. If you don't mind, it doesn't matter."
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Old 10-31-2010, 22:12   #2
Mas Ayoob
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Shark, when I checked your thread in Carry Issues a few minutes ago, there were 17 posts, and I'm sure you'll get more. As the thread develops, I expect you'll see a good representation of your potential jury pool in such a case. There will be folks who don't care what your BAC (blood alcohol content) was when you pulled the trigger, and you may soon see the sort of teetotaller who believes anyone who drinks more than they do is an out of control drunk.

I testified as an expert many years ago in a case where a man shot and killed another man in self-defense during an after-hours drinking party at an office. It was one of the rare states where the jury both determined the verdict and set the sentence: they found him guilty of Murder and sentenced him to ... probation.

The jury was agreeable to discussing this strange dichotomy with the judge and the prosecutor and the defense lawyer. What the jury said in essence was, "The prosecutor said we had to send a message that you can't just get drunk and kill people. The defense lawyer said we had to send a message that you can defend yourself any time, any place. The judge told us we had to determine what a reasonable and prudent person would do in the same situation. We figured a man who said himself he was 's--tface drunk' couldn't BE reasonable and prudent, but we also figured we would have shot the guy ourselves. So our sentence said, you can defend yourself, but our verdict sent a message, and the message was, 'Don't be gettin' s--tface drunk and killing people.' "

That was the day I stopped trying to predict jury verdicts.

Shark, you actually gave two hypotheses in your question. Hypothesis One: you've had a Margarita and had to fire in self-defense. I wouldn't worry about that much. Hypothesis Two: you're actually DRUNK and have to shoot someone in self-defense. Much bigger problem. Our guy in that case above was never measured, but we reverse-engineered it and figured he was at about 0.09 BAC, at a time when in that state 0.10 was considered "legally drunk." Today, almost everywhere, it's 0.08.

There's gonna be an issue of "how drunk is drunk." People who should wear warning T-shirts that say "Instant A-Hole, Just Add Alcohol" probably shouldn't have guns anywhere near them when they drink. The standard will always be, "What would a reasonable and prudent person have done, in the same situation, knowing what the defendant knew." FOLLOW THE LAW, KNOW YOUR LIMITS, and you SHOULD be defensible.

Feel free to link this to your thread in Carry Issues, and let me know if I can be of any help there.

Mas (who is composing this post at home after midnight, with a Rolling Rock beer in front of him, a .45 readily at hand, and not at all worried about it.)
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