PS 5-314: Wearing Handgun while Under the Influence

The Maryland Public Safety Code contains many of the gun licensing laws and the criminal offenses regarding illegal gun possession.  The most common (and most serious) public safety code violations focus on those prohibited from possessing a firearm due to prior criminal convictions.  But there are also laws in the public safety code that govern gun permit holders, and a violation of these laws could result in jail time and a permanent criminal conviction.  PS 5-314 prohibits Maryland Wear and Carry Permit holders from possessing a firearm while under the influence of drugs or alcohol.  There are three main elements the State would have to prove to sustain a conviction for this offense.  The first is that the defendant held a valid Wear and Carry Permit issued by the Maryland State Police (MSP).  Second, the State would have to prove the defendant wore, transported or carried the handgun in question.  The firearm does not have to be found on the defendant for the State to satisfy this element.  Finally, the State must prove the defendant was under the influence of alcohol or drugs.  There is no specific blood alcohol content mentioned in the statute, and there is no requirement that a person submit to a blood or breath test under this law.  Therefore, establishing the third element of this charge is often highly subjective.  The exception would be if the defendant was arrested for DUI and officers found a firearm on the defendant or in his or her vehicle, which is the most common scenario for this offense.
 
If police conduct a lawful traffic stop and discover the driver holds a Maryland Wear and Carry Permit, they will determine whether a firearm is present before doing anything else.  Typically, in these scenarios the driver will disclose that he or she has a firearm in the vehicle in order to avoid a potentially dangerous situation.  Police will then secure the firearm and continue with the traffic stop.  If law enforcement concludes the driver was impaired there will be an additional criminal charge of PS 5-314 in addition to the DUI and DWI citations.  Other scenarios include altercations where police respond and determine that one or more of the participants has a permit to carry.  Even if there is no physical altercation or other independent crime, police may have probable cause to detain a person who was in possession of a firearm in order to determine impairment.
 
PS 5-313 requires that all individuals whose Maryland Wear and Carry Permit is revoked to surrender the physical permit to MSP.  Failure to do this could result in a separate criminal misdemeanor charge that carries up to one year in jail.
 
The strongest defenses to violations of PS 5-314 are typically centered around the third element of the charge, which is whether the defendant was under the influence of drugs or alcohol.  In cases where there is no DUI traffic stop there will not be a breath or blood test, so impairment will strictly be based on the officer’s observations.  The statue does not make it illegal to consume alcohol and possess a legal handgun, just like DUI laws do not make it illegal to consume alcohol and then drive.  The language of the statue requires proof that the defendant was under the influence.  Jury instructions will often include language that normal faculties were impaired and a good defense lawyer should be able to establish that this is an extremely high standard, and requires far more than just the presence of drugs or alcohol.
 
Maryland Public Safety Code section 5-314 is a misdemeanor with a maximum jail sentence of 1 year and a fine of $1,000.  A conviction or even probation before judgment (PBJ) could trigger suspension or revocation of the wear and carry permit, which would be initiated by MSP’s licensing division.
 
Benjamin Herbst is an experienced firearms lawyer who has successfully defended hundreds of clients in Maryland gun cases.  Almost all defendants charged with a violation of PS 5-314 have no criminal record and Benjamin fights to keep it this way.  He also protects his client’s rights to own and possess firearm.  Additionally, Benjamin has a history of success defending Maryland DUI and DWI case.  This ends up being extremely important in PS 5-314 cases due to the overlap in the methods for proving impairment by drugs or alcohol.  Benjamin is available anytime at 410-207-2598 to discuss your case.