Co worker pulled over with gun in car- no CCW.


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Ben Shepherd
June 4, 2004, 03:40 PM
Guys, just so you know, I had a co-worker pulled over last night with a gun in his glove box. He had forrgotten it was there.

Officer #1 failed to find it on an initial search, officer #2 found it after said coworker was in the squad car handcuffed. Claimed it was loaded, co-worker claimed it wasn't.

This co-worker owns a bar, which he manages at night so he keeps the gun in the car for protection when making late night deposits, so this might help.

Haven't had time to talk with him about why he was pulled over, but I did refer him to Mitch Vilos, and I will post updates as I get them.

I also told him that should he come out of this OK, he NEEDS TO GO GET HIS CCW!!! He told me now he understands why I'm so vocal about the 2nd amendment.

Mods, I'm not requesting a float, as it may take some time to get the ball rolling. If it gets to where things are happening quickly, if THR members are interested, I'll request a float then.

Details as I get them.

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Gordon Fink
June 4, 2004, 03:52 PM
I wonder if he consented to a search.

~G. Fink

tyme
June 4, 2004, 04:00 PM
Why was he arrested? What prompted the handcuffing and second search? Getting arrested for something unrelated won't cause a jury to be very sympathetic when he's charged with unlicensed handgun possession.

Never consent to a search, ever. And never do something so obviously illegal that you'll end up in the back of a squad car while a cop rummages through your car finding more skeletons.

R.H. Lee
June 4, 2004, 04:14 PM
I wonder if he consented to a search.


That was my first thought. I'm no lawyer, but I think unless he was already under arrest any evidence obtained without his consent for a search would be inadmissable. Of course the cops could always claim 'probable cause' (they had a report of a 'man with a gun' whose vehicle description just happend to match his car).

I thought Utah was less restrictive........

Gordon Fink
June 4, 2004, 04:17 PM
Without more information, I’ll hazard a guess that he was pulled over under suspicion of drunk driving.

~G. Fink

gunsmith
June 4, 2004, 04:32 PM
If he is so forgetfull then how can he remember if it was loaded or not?
I've been pulled over plenty of times and never searched,even for going close to 100mph in 65mph zones (you know,motorcycle rider)
What did he do to get cuffed and searched?
From what little I know of Utah law carrying in a glovebox is a big nono.
I hope it's not a felony.

Correia
June 4, 2004, 04:48 PM
What was he pulled over for?

Ben Shepherd
June 4, 2004, 05:00 PM
I did't ask why the intial stop, didn't get the chance. The conversation started with him saying "What are my gun rights Ben?" We chatted for maybe 1 minute, then work went nuts, and he didn't want everyone and thier dog listening to our discussion, so we'll be talking later.

I'm still at work, and it's really busy, so I can't really take the time to post the whole conversation we had right now. HOWEVER: I will find the time to have a detailed chat with him before leaving work, and will get to a location that I CAN take the time to post details by tommorow night.

sumpnz
June 4, 2004, 05:15 PM
I guy I was friends with back east (PA) got arrested for a gun in his glove box. He managed to beat the rap by showing that it was an illegal search that turned it up. It would have been a felony had the charge stuck.

In his case, the gun was in a locked box inside his locked glove box. To comply with the law he should have had it in his trunk. Not sure if it was loaded. Don't know why he was pulled over, though knowing him it was probably for speeding, possibly suspected DUI.

Ben Shepherd
June 4, 2004, 05:18 PM
For those wondering:

As for the co-workers character, I've worked with him for a little more that 3 years, yes he's a little rough around the edges.

BUT:

Would I trust him with one of my guns? Yes.

jnojr
June 4, 2004, 07:10 PM
I also told him that should he come out of this OK, he NEEDS TO GO GET HIS CCW!!! He told me now he understands why I'm so vocal about the 2nd amendment.

It may be far too late for him now... if he's convicted of a crime, especially a felony, he'll never have a CCW, let alone a gun, again.

Michigander
June 4, 2004, 08:20 PM
If he is so forgetfull then how can he remember if it was loaded or not?

First thing I thought too. His lawyer better help him with this.

Also, in Michigan, IIRC, a felony could cause your liquor license to be revoked. He may be out of business after all the dust settles.

Hope not.:(

Ben Shepherd
June 4, 2004, 08:32 PM
Here's what I know so far:

1. Pulled over for DUI:(

2. Refused testing, so instant arrest. Will have to wait for further results on this portion.

3. They claim it was loaded(he wasn't shown this), he's thought about this since our initial discussion, and he says it couldn't have been, as he bought 1 box of ammo when he bought the gun, shot a cylinder full of it, and hasn't pulled the trigger on it since. And his box of ammo at home is only missing those six bullets.

4. They're trying to hang him for no serial number on gun. However, it's a security six with an aftermarket grip that covers the frame, so unless he's been totally stupid here, that should be cleared up quickly. He bought the gun with that grip on it many years ago in a private transaction.

He's one of the type that bought it for protection, but he's not a shooter and never thought to check it for the #, so I really hope it's there when they look for it, or he's royally screwed.

Like I said, he's an OK guy(give you the shirt off his back type). So hopefully he's just been a little stupid here and going to learn an expensive lesson. The alternative here, as we all know, is not good at all.

More later, after he talks with attorneys.

Ben Shepherd
June 4, 2004, 08:37 PM
The big moral here is:

DON'T DRINK AND DRIVE!!!:banghead: If if you are stupid enough to, make :cuss: :cuss: sure you DON'T HAVE A GUN!!!

RED-DOG 40
June 4, 2004, 08:41 PM
Gun hidden in glove box, DUI......OUCH.....:uhoh:

sumpnz
June 4, 2004, 08:48 PM
This is part of the reason that, for the most part I don't carry unless I'm going to/from a shooting related activity. I've been lucky in that after 5 times being pulled over I have to get anything more than a warning, but you never know when I'll get a cop that doesn't know the law and decides to make an issue out of something he shouldn't.

I don't have a CCW, and am uneasy about the possibility of attracting unwanted attention from open carry (although AZ is an open carry state), so I generally leave my iron at home. This is particularly true if I think there's any chance I'll be imbibing any potent potables.

Best of luck to your co-worker. As you said, hopefully this will end up being no more than an expensive lesson.

Edit: Based on Utah law, does unloading it make it legal, or is it bad ju-ju to have in the glove box regarless.

Ben Shepherd
June 4, 2004, 09:00 PM
A little clarification:

He's the type I would trust to treat my gun(or anything else) with respect.

I wouldn't just hand one over as I know he's not a shooter. But I would trust him not to do something stupid(like borrowing it to brandish, etc.). He is aware of the 4 basic rules, as he was raised around guns, just never got into them. Know what I mean?

Standing Wolf
June 4, 2004, 09:04 PM
What's wrong with carrying guns? Last time I read the Second Amendment...

RED-DOG 40
June 4, 2004, 09:10 PM
"Based on Utah law, does unloading it make it legal, or is it bad ju-ju to have in the glove box regarless."

..Having it conceald any where w/o permit a no-no.
Leaving it in the open w/no round in chamber or no round in next up cyl. in revolver legal.

Ben Shepherd
June 4, 2004, 09:20 PM
My personal opinoin here is that the gun is TOTALLY irrelevant to the DUI. But heck, I guess it's a good thing he didn't have his work knife on his belt, or they'd have hit him for that as well.

Here again, thanks to laws on the books, yet another falls victim to assuming the constitution means what it says, and unfortunately assumed wrong.

How many do you know that have no clue how restricted the 2nd ammendment is? The looks on thier faces when they mention doing something and you tell them "Congratulations, you're a felon! You just didn't get caught."

sumpnz
June 4, 2004, 09:22 PM
Having it conceald any where w/o permit a no-no. Looks like he's screwed unless he can get the evidence thrown out due to possible illegal search. Since he was apparently already under arrest (i.e. automatic probable cause) when they found it I doubt that argument will fly.

The only other possibility I see is if he really wasn't drunk, he might be able to argue that the arrest and hence search was improper. But, consent to sobriety tests is usually implyed by ownership of a driving license, so again I don't think this will fly either.

Bummer. Still, I wish him good luck on beating the gun charge. Don't have much sympathy over the DUI charge though (if he was drunk).

Ben Shepherd
June 4, 2004, 09:47 PM
Here's a thought:

Isn't it strange that even in a gun friendly state like Utah, mere possesion/storage of a gun in a certain manner carries heavier penalties than a DUI?

"Reasonable restrictions my :cuss: !!!"

Like I said earlier, more details as I get them. Most likely monday.

Carlos
June 5, 2004, 12:04 AM
Ben, trust me, that gun needs to be removed from the evidence. A good lawyer will achieve that, if he/she's lucky. Lawyers don't have the luxury of choosing which judge who will hear the case. If you get my drift.

Bottom line: Yes, NO DRINKING AND DRIVING, WITH A GUN!!!!!.

Good point about losing a liquor license. Damm, this is a bad, bad, bad deal for your friend.

MarkDido
June 5, 2004, 12:19 AM
As I understand it, at least in Florida.

A SILA (Search, Incident to Lawful Arrest) is one of the circumstances that LE does not need a warrant or permission to search a vehicle.

These are sometimes called "Inventory Searches" of a vehicle to prevent arrestees from claiming that there was an envelope containing $10,000 or valuable computer / camera/ etc equipment in the vehicle before LE had the vehicle towed.

Andrew Rothman
June 5, 2004, 12:30 AM
Um, he carries a gun that he's shot once, with no ammo within miles, for protection?

Riiiiight.

Then he drinks and drives with the gun in the glove box.

Sheeeeesh.

Not the brightest bulb, is he?

A Haslem
June 5, 2004, 12:39 AM
My son was arrested for DUI a couple of years ago in Utah and he had a 223 rifle behind the seat and they seized it. I can't remember all the details but the possession of the weapon did increse the fine, and it was held by the Sherrif for about a month. I'm sure Mitch will be able to help him if anyone can.

No4Mk1*
June 5, 2004, 12:57 AM
I consider a gun in the glove box to be keeping and bearing, but I'm not in charge.
I also know that 80mg/dL of ethanol is not enough to significantly impair many drivers. It varies from person to person.

Ben Shepherd
June 5, 2004, 01:22 AM
Matt Payne:

His procedure was to load it on nights he was closing his bar and making a night deposit, and to keep it unloaded at all other times. He was not working his bar the night in question.

Everyone interested: Post any questions you want, I'll answer if I can. But please, easy on the criticism folks. Believe me he's giving himself enough at this point.

minnesota oldie
June 5, 2004, 02:19 AM
If you make a post to get help or sympathy for some one who is being screwed by system, OK, but don't expect a lot for someone who just screws up, and nice guy or not that is just what he did.

sturmruger
June 5, 2004, 02:25 AM
I hope that he can get a good lawyer and this will turn out ok. Sounds like he did a few things that weren't smart, but if he comes out of this with no felony maybe he will become a little more proactive about learing proper gun handling and some of the misc laws that are good to know.

sevenpoint62mm
June 5, 2004, 03:10 AM
Ben I got bad news for you. Not sure how the law is out in Utah but in Texas DUI is very serious. Serious enough to cost you your CCW. But this guy has way way bigger problems. If they say that gun was used in a crime (whether it was or wasn't) your friend is not going to be able to fight it. On a jury would you believe a guy that had the right and reason to a CCW was illegally carrying an unmarked gun used in a crime while drunk? :banghead: It look bad my friend, but hindsight is a luxury none of us has til its worthless. Pray for your friend and his lawyer, hope he beats it. :(

GigaBuist
June 5, 2004, 10:47 AM
Here in Michigan a DWI/DUI is enough to keep you from getting a CCW for 3 years. Your second one is 8 years. Note: that's not comitting DUI while in posession of a gun. Just any offense.

Used to be (2001 - 2003) that any misdemeanor would prevent you from getting a CCW for 3 years.

Posession of a pistol while intoxicated is also a crime here.

Carrying a concealed weapon is a felony, possible 5 years in prison.

I know a guy that did pretty much the same thing as your co-worker about 20 years ago in Michigan. Convicted felon, total loss of RKBA.

Ben Shepherd
June 7, 2004, 09:24 AM
Monday (6/7/04, 6:15 AM MST):

What I have figured out so far:

If they stick him with the loaded/concealed part, it'll be a class A misdemeanor. If they only get him with unloaded/concealed, it'll be a class B misdemeanor. Class A conviction means no attempt at record expungement for 5 years, class B can be expunged after 3 years.

So at least the gun part isn't as serious as I first thought.

I am not an attorney, the above is based on my interpretation of Utah criminal code, and contains no legal advice of any consequence.

As for the DUI portion: No word yet.

fjolnirsson
June 7, 2004, 09:32 AM
So, would either of those misdemeanor charges cause loss of his RKBA?

Ben Shepherd
June 7, 2004, 10:13 AM
Not sure yet about total loss of RKBA(still reading up on it), but CCW is definately out unless he gets his record expunged.

What I do know for sure:

Utah, do not ever put a gun(loaded or unloaded) in the glove compartment or console of your vehichle without a valid CCW, period.

Big no-no in several different ways.

7.62FullMetalJacket
June 7, 2004, 11:14 AM
It is SO easy to get CCW in Utah. So easy.

However, I believe CCW is null and void if intoxicated.


Check out the "illegal transport" angle. Much less of a charge.

DMF
June 7, 2004, 12:11 PM
Well assuming the facts are as presented, then this guy is screwed.

First the search of the vehicle was incident to arrest and therefore legal. So he's going to claim the cops planted evidence? Doubtful, because they won't want to lose their job, go to jail, and get sued.

Second, you say his claim is that he carried the gun for protection from the bar to the bank. Then he claims he would unload the gun, take the ammo inside to his home, but leave the gun in the car on nights he wasn't making a deposit. No prosecutor, judge, or jury is likely to buy that. If he took the ammo inside why didn't he take the gun inside?

Also, he remembers that he unloaded the gun, but he forgot the gun was in the glovebox? Again, going to have a hard to time to get anyone to believe that story.

As others have said, drinking and driving, and drinking and guns don't mix.

The Real Hawkeye
June 7, 2004, 12:34 PM
He's not likely to get much sympathy, even from a pro-gun jury, if he was actually drunk at the wheel. Absent that, he could have hoped for a de facto jury nullification based on a belief by the jury in the RTKABA. I agree with DMF on this. He's probably screwed. He hasn't lost his RTKABA, but he's probably lost the government's recognition of that right, which comes close to amounting to the same thing from a practical standpoint.

DMF
June 7, 2004, 01:01 PM
. . . I agree with DMF on this. . . Hawkeye, I think you and I agreeing is one of the seven signs of the apocalypse. :D :evil: :cool: LOL, just kidding of course!

The Real Hawkeye
June 7, 2004, 01:17 PM
Hawkeye, I think you and I agreeing is one of the seven signs of the apocalypse. LOL, just kidding of course!LOL. Yes, it appears that you are coming around. :D To the extent that we agree, I hold out hope for you.

Edward429451
June 7, 2004, 01:17 PM
Aw, we've all done dumb things. It doesn't make him any worse than any of us or mean that he shouldn't have a RKBA...

But they ARE out to get us, one at a time.

Foresight. build your defense before the incident. What if what if what if...

What if he hadn't been DUI? My sympathies for your friends lack of foresight. Hope he fares well and learns from his indiscretions.

:(

Roadkill Coyote
June 7, 2004, 01:20 PM
Search incident to arrest and a custodial inventory are two seperate things. If they towed the car, then they probably did both, and have two legal rationales for finding the gun.

On the other hand your friend shouldn't be making any assumptions about the legality, or relative strength, of any part of the process without a lawyer. After all, many a fine case has been brought low by poor report writing and the like.

Life is full of these learning experiences. I do hope your friend is quick on the uptake

;)

gunsmith
June 7, 2004, 02:39 PM
will encourage your friend to quit drinking and take up the good fight,RKBA!

Good luck to him,you know if he started going to his church whatever that is and went to AA on his own accord the court may go easier on him.
IANAL though.

Aikibiker
June 7, 2004, 03:50 PM
Ben Shepherd,

I'm sorry to hear about your friend's predicament. I hope everything turns out all right for him.

Strange though Having a gun in the glove box of your car here in FL is not a crime. Things sure are different in them thar Northern states. ;)

Ben Shepherd
June 8, 2004, 02:01 PM
Latest:

It's looking like he was not DUI. If this is the case, then the gun charge will go away, as they had no probable cause.

(Assuming I understand the law correctly in this instance.)

DMF
June 8, 2004, 02:15 PM
Ben, you stated earlier that Utah law says they can arrest based on refusal to submit to field sobriety testing. If they had PC for the stop, and reasonable suspicion to conduct a field testing, and he did in fact refuse the testing (assuming what you've stated about Utah law and refusing field sobriety tests is correct) then they did have a legal basis for the search incident to arrest. The gun is unlikely to get suppressed.

Not trying to pee in your cornflakes, and I'm NOT a lawyer, but things don't look good for your friend based, on what you've presented here.

sumpnz
June 8, 2004, 02:26 PM
One thing. Even if he was below .08 he could still get a DUI conviction if they can show that even at that lower level he was impared. The "legal limit" just sets a bar that, when exceeded, guarantees a conviction. But, he may be able to get off because at this point, if he was in fact below the limit, it will be up to the prosecuter to prove he was impared. Without a video of him driving erratically, that'll be tough.

I agree with DMF that getting off from the DUI will probably not get the gun excluded from evidence. But, if he was not DUI, that may make it easier to convice a jury that gun, in fact, was not loaded which would at least minimize the damage.

IANAL.

Roadkill Coyote
June 8, 2004, 05:22 PM
The conclusion that your friend is out of trouble is as premature as the conclusion that he was in it. Unless his lawyer told him so. Period. But there are some questions that might make it easier to comment on things.

[list=1]
What traffic offense was the original stop for?

You said that your friend refused Roadsides, did he take or refuse any other tests, specifically blood or breath? (If breath was administered, what was the resulting BRAC?)

Have you looked at a copy of the arresting officer's report, and did it contain a list of facts and circumstances that led the officer to reasonably believe that you friend was to the slightest degree, impaired by the consumption of alcohol? (Things like poor driving, red eyes, flush face slurred speech, lack of coordination, any odor of an alcoholic beverage, or any other evidence including cans or bottles in the car.)

When did the arresting officer realize that your friend was sober, and that he was making a mistake? (Probable Cause may, or may not, be effected by a later discovery of you friends sobriety. Probable Cause is determined by the facts and circumstances that were available to the arresting officer at the time of arrest.)

[/list=1]

artherd
June 9, 2004, 05:13 AM
So, he wasn't DUI. Very good.

Then the arrest for suspected DUI is called into question. Why was it made? If you overturn that, you overturn the search incident to that arreast that found the gun.

Good luck, and remember to tell your friend "There ain't much as useless as an unloaded gun!"

Ben Shepherd
June 9, 2004, 09:27 AM
I haven't had any "first person" on any documentation yet. He's just giving me updates after talking with his attoney.

I'm trying not to get to involved or offer advice to him, just observe and report, because I AM NOT an attorney, and don't want to rock the boat.

Not sure exactly who his attorney is at this point, but it sounds like he's doing a good job for my co-worker

The Real Hawkeye
June 9, 2004, 10:31 AM
I keep hearing mention of the notion that he is likely to "lose his RTKABA." He cannot lose that right. Who would take it away from him? The Government? Impossible, as the government was not the source of his right to keep and bear arms to start with. The only thing government can do is to stop recognizing his RTKABA, in essence declare war on his personal liberties, making him a second class citizen (a sort of serf-status or slave, really) in the Republic. His rights, however, remain exactly as they were when he first appeared on the planet. We are endowed by our Creator (NOT GOVERNMENT) with certain inalienable rights. Among these are life, liberty and the pursuit of happiness. Now, having a right to something, means having the right to defend it. Having a right to life, for instance, mean that we have the right to defend our life, and to the effective means thereto, i.e., the latest in personal arms, otherwise we cannot actually say that we have a right to life. It is precisely to secure this right to personal arms (among other rights) that governments are instituted among men to start with. That's government's only real function. If it fails in that function, it has become destructive to its own ends, and the word for that is tyranny. In which case it becomes the right of the people to alter or abolish it, and to institute new government. So, when government seeks to deny a human being at liberty an inalienable right (i.e., a right permanently attached to his being a human being at liberty), it actually loses its own legitimacy as a government.

Ben Shepherd
June 9, 2004, 10:59 AM
Hawkeye, I hear you on that.

But how many will spend jail time over it? Not many I'm bettin'.

The Real Hawkeye
June 9, 2004, 11:16 AM
Hawkeye, I hear you on that.

But how many will spend jail time over it? Not many I'm bettin'.Ben, if you've done nothing wrong, i.e., nothing which is not within your rights to do, then why would you submit to being enslaved in prison, followed by being forced into a permanently inferior status as a serf? Isn't your liberty worth fighting and dying for, if necessary? What would the men say who gave their lives for that cause during the War For Independence?

Actually, I understand what you are saying, i.e., most do not actually value liberty above life, which is why it is so easy for a people to be transformed into slaves, either chattel slaves or slaves of tyrannical government. It is an unfortunate reality. The principle still stands, however. Men have shown the courage to choose liberty over life in the past, and to the extent that a people make them their models, liberty will survive in America. The converse, unfortunately, is also true.

Ben Shepherd
June 9, 2004, 11:29 AM
Hawkeye, check your PMs.

gunsmith
June 10, 2004, 06:25 AM
Maybe show this thread to your friend so he knows people out there are rotting for him.
ooooooopppppssssss
rooting!

Ben Shepherd
June 10, 2004, 09:23 AM
He knows about this thread, I asked his permission to post it.

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