NO. It is illegal under Utah law to carry a dangerous weapon while under the influence of alcohol or drugs. More important, it is not safe.
Carrying a Dangerous Weapon Under the Influence of Alcohol or a Controlled Substance
Utah Code 76-10-528 imposes criminal penalties for carrying a dangerous weapon (including guns, but also including other items classified as dangerous weapons) while intoxicated or under the influence of a controlled substance. The statute provides certain limited exceptions for circumstances in which criminal penalties are not imposed. But even with a legal exception, care and caution should be exercised in assessing how the effects of alcohol or medications may affect the safety or danger of carrying a weapon.
Exceptions to the Rule
The statute does provide a few limited exceptions under which an intoxicated person will be legally allowed to carry a dangerous weapon. These exceptions include:
- carrying a dangerous weapon that is securely encased (including both locked and unlocked containers, as long as the weapon is not readily accessible or available for immediate use);
- a person who is acting in defense of self or in defense of another person under Utah Code 76-2-402 (note that this exception does NOT apply to the use of force in defense of property);
- carrying a weapon either in the person’s own residence or, but only with permission, in the residence of another person;
- a person who is under the influence of cannabis or a cannabis product, so long as the possession and use of cannabis complies with Utah’s Medical Cannabis Act; and
- a person who is using medications validly prescribed and approved for the treatment of attention deficit hyperactivity disorder (ADHD/ADD).
Medical Exceptions
The two medical exceptions in the statute are somewhat problematic. The first exception relates to the medical use of cannabis/marijuana. The second involves a very narrow exception to the broader prohibitions relating to all controlled substances.
Utah Medical Cannabis Act and Federal Law
The Utah Medical Cannabis Act includes very specific requirements for the form and content of cannabis products that are permitted under the act. If a person’s use of cannabis or cannabis products complies fully with the act’s legal provisions, then a person is excepted from criminal liability under Utah Code 76-10-528.
However, this exception does not take into account federal law relating to marijuana. As of 2022, federal law still classifies marijuana/THC as a Schedule 1 controlled substance. Possession or use of marijuana is still a crime under federal law (even if the law is not currently being enforced). Further, due to the Supremacy Clause of the United States Constitution, a state law that allows a person to carry a firearm may not override conflicting federal law. Consultation with an experienced attorney is strongly advised for any person confronting such a situation.
Controlled Substances and ADHD
Section 76-10-528 first provides a broad prohibition on carrying a dangerous weapon for any person who is “under the influence of … a controlled substance” (as defined in Utah Code 58-37-2). But the exception provided in subsection (2)(e) applies only to medications approved by the FDA for the treatment of ADHD/ADD, when such medication is validly prescribed and used only as prescribed.
Medications used to treat ADHD often include controlled substance stimulants and amphetamine-based drugs. But these medications represent only a very small portion of drugs that are classified as controlled substances.
Under this Utah statute, the prohibition applies to all controlled substances, defined as including all substances listed under Schedules I, II, III, IV, or V of either the Utah Controlled Substances Act or the federal Controlled Substances Act, as well as any controlled substance analog and any substance listed separately in Utah Code 58-37-4.2.
The exception applies only to medications for the treatment of ADHD.
Schedule IV and V controlled substances include drugs commonly used for treating anxiety and similar medical conditions, cough medicines that contain low amounts of codeine, and some mild pain relief medications. A strict reading of Utah Code 76-10-528 would prohibit the carrying of a weapon by a person using such medications.
Carry or Possess a Weapon?
The statute uses the term “carry” rather than “possess” in reference to conduct involving a dangerous weapon. This appears to be an intentional choice by the legislature, as Utah courts generally give these two words very different meanings.
The common definition of “carry” applies generally to this statute. A person who is under the influence of alcohol or drugs should not pick up a gun or waive it around, should not stuff a gun in their waistband or make threats with it, should not clean a gun or shoot a gun.
Utah courts have applied a broader definition to the term “possession” in criminal cases, including the concepts of both “actual possession” and “constructive possession.” Courts view “actual possession” as being very similar to the idea of “carrying” an item. But “constructive possession” is a much more expansive concept.
Constructive Possession
“Constructive possession” can be found by the courts when a person has knowledge of an object and the nature of the object, and also has the ability and the intent to exercise control over the object. The following elements summarize what is required to show constructive possession.
- knowledge of the object’s existence;
- knowledge of the nature of the object;
- a current ability to exercise control over the object (pick it up, move it, carry it, etc.);
- the actual intent to exercise control over the object.
Utah’s laws relating to “restricted” persons and firearms include the broader concept of possession. But a person who is not classified as a restricted person is prohibited from the more narrow conduct of carrying a dangerous weapon.
Intoxicated or Restricted?
As noted above, different laws apply to a person who is only temporarily intoxicated as compared with a person who meets the legal definitions of a restricted person. Utah Code 76-10-502 prohibits the purchase, transfer, possession, or use of a dangerous weapon as well as a general prohibition on having a dangerous weapon “under the person’s custody or control.” Section 76-10-502 also makes it a crime to agree, consent, offer, or arrange to perform any of the prohibited acts.
The language relating to offering, arranging, agreeing, or consenting to an act involving a firearm or other dangerous weapon make this statute applicable to a range of conduct significantly broader than just “carrying” a dangerous weapon. Placing an order to purchase a firearm, offering to retrieve a firearm for another person, selling a gun or offering to sell a gun, and many other related acts can carry felony penalties for a restricted person under this statute, even if the person never actually touches a firearm.
Safety First
Beyond any question of legal or illegal, safety should be the first priority. Alcohol and drugs simply do not mix well with guns. Just because something may be technically “legal” is not a good reason to do the thing. Always be safe.