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In Wisconsin, possessing a firearm while intoxicated is a Class A misdemeanor that carries up to nine months in jail and a fine of up to $10,000. To be convicted for being armed while intoxicated, the State has to prove the defendant was both intoxicated and operated a weapon or went armed.
Wisconsin statute 941.20(1)(b) prohibits an individual from operating or going armed with a firearm while under the influence of an intoxicant. The statute is under endangering safety by use of dangerous weapon.
There are two key elements to this crime that the State must prove. First, they must prove the defendant either operated or went armed with a firearm.
“Went armed” means that the firearm must have been on the defendant’s person or within their reach and that the defendant must have been aware of the presence of the firearm. This does not require that a person actually go anywhere. A person can be charged with intoxicated possession of a firearm in their own home.
“Firearm” is defined as a weapon that acts by the force of gunpowder.
Second, the State must prove the defendant was under the influence of an intoxicant at the time they operated or went armed with a firearm.
“Under the influence of an intoxicant” means that the defendant’s ability to handle a firearm was materially impaired because of consumption of an alcoholic beverage (or hazardous inhalant, or controlled substance, or combination thereof), meaning that they have consumed a sufficient amount of alcohol (or other listed substance) to cause them to be less able to exercise the clear judgment and steady hand necessary to handle a firearm.
There are two key elements to this crime: being under the influence of an intoxicant and operating or being armed with a firearm.
To determine intoxication, law enforcement use similar means to evaluate suspects to those used during OWI investigations. This includes indicators such as slurred speech, bloodshot eyes, difficulty answering questions or retrieving requested items. They also use standardized field sobriety tests, preliminary breath tests, and subsequent evidentiary chemical breath or blood tests. Similar defense tactics used in OWI defense can be effective, including bringing doubt on how the tests were administered and determining whether the clues or indicators noted in the reports are actually present on squad or body camera footage (if any). Your attorney will also see whether required constitutional standards were met at various stages of the stop, investigation, and arrest to see whether there is an opportunity to suppress key evidence.
Additionally, evidence and testimony that refutes the State’s claims that the firearm was within the defendant’s reach or that the defendant was aware of the presence of the firearm can also be useful as it undercuts the vital elements of the “went armed” requirement under the law. A firearm that is locked in a safe may not meet the legal requirements for “going armed”. Similarly, if a person borrows a car from a friend who left a firearm in the glove box, the State may not be able to prove the elements of the offense because the defendant was not aware of the presence of the firearm in the vehicle.
Not “intending” to be armed while intoxicated is not an explicit defense, because the “went armed” requirement only requires awareness that the firearm was on the defendant’s person or within their reach. Additionally, that the firearm was not loaded is not a legal defense to the charge, as being loaded is not part of the “went armed” requirement. The law requires possession of the firearm, regardless of whether it is loaded.
Wisconsin statute 941.20(1)(b) makes intoxicated possession of a firearm a Class A misdemeanor, punishable by up to 9 months jail and a $10,000 fine, or both. In addition to these penalties, firearms seized in these types of cases are often required to be forfeited and destroyed under state law following a conviction.
The specific facts of the case will impact the severity of the sentence imposed upon a conviction for this offense. Important information includes:
All of these factors play a role in sentencing for these offenses.
Having a concealed carry permit does not change the statute’s prohibition against possessing a firearm while intoxicated. While a CCW permit can prevent a CCW charge that can accompany arrests related to intoxicated possession of a firearm, it is not a defense against the intoxicated possession charge itself.
Additionally, the Wisconsin Supreme Court has found that there is not a Second Amendment right to go armed while intoxicated in one’s home. In State v. Christen (2021 WI 39), the court noted the important governmental interests in public safety, preventing gun violence, protecting human life, and protecting people from the harms caused by the combination of alcohol and firearms.
Intoxicated possession of a firearm (Wisconsin statute 941.20(1)(b)) is a Class A Misdemeanor, punishable by up to 9 months jail and a $10,000 fine. Additionally, firearms seized in these types of cases are often required to be forfeited & destroyed under state law following a conviction.
While the case is pending, a defendant will likely also be required to remove all firearms from their home as a bail condition, and may be required to surrender their concealed carry permit to the Department of Justice. A conviction for possession of a firearm while intoxicated will not, however, prevent a person from legally owning firearms in the future, or obtaining a concealed carry permit.
No, carrying a firearm while intoxicated is classified as a Class A misdemeanor, punishable by up to 9 months jail and a $10,000 fine. However, some circumstances can bring additional charges that could be felonies. For example if the person possessing the firearm is a convicted felon or if the intoxicated defendant discharges the firearm, those actions can support separate felony charges. There are no additional penalties if a person is convicted of having more than one firearm while intoxicated, or convicted of repeat offenses of intoxicated possession of a firearm.
