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GEORGIA CODE
Copyright 2007 by The State of Georgia
All rights reserved.

*** Current through the 2007 Regular Session ***

TITLE 16. CRIMES AND OFFENSES
CHAPTER 11. OFFENSES AGAINST PUBLIC ORDER AND SAFETY
ARTICLE 4. DANGEROUS INSTRUMENTALITIES AND PRACTICES
PART 3. CARRYING AND POSSESSION OF FIREARMS

O.C.G.A. § 16-11-134 (2007)

§ 16-11-134. Discharging firearm while under the influence of alcohol or drugs

(a) It shall be unlawful for any person to discharge a firearm while:

(1) Under the influence of alcohol or any drug or any combination of alcohol and any drug to the extent that it is unsafe for the person to discharge such firearm except in the defense of life, health, and property;

(2) The person's alcohol concentration is 0.08 grams or more at any time while discharging such firearm or within three hours after such discharge of such firearm from alcohol consumed before such discharge ended; or

(3) Subject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.

(b) The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of possessing or discharging a firearm safely as a result of using a drug other than alcohol which such person is legally entitled to use.

(c) Any person convicted of violating subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature.

HISTORY: Code 1981, § 16-11-134, enacted by Ga. L. 1995, p. 139,
I have always been a little confused by this code section and was wondering if someone could clarify. Part one provides the exception for self defense but I was not sure if the exception was still valid if someone was in violation of 2 & 3.

Basically if you clearly shoot in self defense with a BAC higher than .08 or with trace metabolites of a controlled substance in your system are you still afforded the exception of part 1 that allows the discharge of a firearm "in the defense of life, health, and property;" ? I'm probably failing to read this correctly, but it seems convoluted.
 

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Yes and No

Yes, it appears that the legislature only wrote the "unless you shoot in self-defense" exception into the law with regard to "less safe" prong of shooting under the influence. Shooting under the influence "per se" or while under the influence of drugs are still criminalized, with no apparent exceptions.

But perhaps an exception can be found in O.C.G.A. 16-3-26, which is in the part of the Code dealing with Defenses to Criminal Prosecutions. It says that if you commit an offense (any crime other than murder) while under coercion and with the reasonable belief that you must do so to prevent imminent death or serious bodily harm, you are not guilty of that crime. The caselaw indicates that the "coercion" must come from "threats or menaces" from another person.

So if some other person, say, a criminal who is assaulting you for no good reason, reasonably puts you in fear of your safety, and any reasonable person in your shoes would think that you have to shoot him, you can shoot him despite being intoxicated by alcohol at .08 or more or while having drugs in your body fluids.

But prosecutors could argue against this: They could say that 16-3-26 should not apply because it's a "general" and broad law that has been replaced in this kind of scenario by the more specific statute dealing with firing guns while impaired. And they could say that since that 16-11-134 was passed more recently than 16-3-26, it had the effect of REPEALING any conflicting portions found in the older law that might have worked to the defendant's favor.
 

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Another Possible Defense

Consider also 16-3-20, which sets forth various justification defenses. These are defenses to "any crime." There are six (6) of them listed.

The first 4 are pretty specific and easy to understand, and #1 may apply on these facts. Perhaps #4 might arguably apply to a citizen trying to make a "citizen's arrest" of the criminal who is attacking him. I don't know what #5 or #6 would apply to-- they seem kind of vague.
 

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Discussion Starter · #4 ·
Thanks Gunsmoker, thats how I had interpreted it.

However, I wonder if the stand your ground law would protect one

O.C.G.A. § 16-3-24.2
Immunity from prosecution; exception

A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of this title.
Since Code Sections 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 do not mention intoxication would a shooting in compliance with 16-3-24.2 make one immune to prosecution from 16-11-134?

Thus the type of scenario I am getting at is someone who is at home, legally possess a firearm, has a BAC higher than .08, and shoots a B/G in what would otherwise clearly be self defense.

Would they be immune from all prosecution related to their use of lethal force? Would they have no immunity or maybe just immunity from homicide/manslaughter but not the misdemeanor of discharging a firearm while intoxicated?
 

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Maybe

Maybe. Like I said, there's a "justification" defense that mentions those other Code sections regarding lawful use of force or deadly force. But maybe those particular code sections themselves (16-2-21 thru 16-3-24.2), if they apply at all, only protect you from prosecution for crimes such as murder, voluntary manslaughter, or aggravated assault. I don't know that they would cover you for discharging a gun under the influence. I would argue that they would. Others may take a different view.

I mean, if you are knowingly in possession of stolen property (say, a stolen gun with a filed-off serial number), or some other crime involving that property (let's say its a stolen machinegun, not registered in your name with BATF), and you have to use that gun to defend yourself in a clear-cut case of self defense, are you immune from all prosecution for anything that the cops learn about in their investigation of the case? No. You've only got a defense as to the charges that have to do with shooting that gun at people. The other crimes can still be prosecuted. I think.

But really, unless the statute is crystal-clear or some very similar case has already been decided on appeal, there's no way to accurately predict the outcome of these kinds of legal questions. It's all up in the air, depending largely upon the mood of the judges and the skill of the lawyers.
 

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Ned said:
Thanks Gunsmoker, thats how I had interpreted it.

However, I wonder if the stand your ground law would protect one

O.C.G.A. § 16-3-24.2
Immunity from prosecution; exception

A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of this title.
Since Code Sections 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 do not mention intoxication would a shooting in compliance with 16-3-24.2 make one immune to prosecution from 16-11-134?

Thus the type of scenario I am getting at is someone who is at home, legally possess a firearm, has a BAC higher than .08, and shoots a B/G in what would otherwise clearly be self defense.

Would they be immune from all prosecution related to their use of lethal force? Would they have no immunity or maybe just immunity from homicide/manslaughter but not the misdemeanor of discharging a firearm while intoxicated?
I'm going to argue that they have total immunity...

First, if a person qualifies for justified defense under 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 then they are immune from criminal prosecution.

Second, the immunity itself is only negated for illegal carry or possession. The alcohol is for discharge, so 16-3-24.2 would still apply.

Third, the immunity covers any law they broke (state or local) involving that justified use of threats or force.

So, example one that I say qualifies as exemption: As you stagger in to your house you encouter a burgler and shoot.

Well you probably just broke a dozen local and state laws depending where you live. This exemption protects you from those laws becuase you were protecting yourself.

Now any laws broken that is outside of that justified defense are not protected. So taking all the cash/jewlery the burgler had would mean you could still be tried for theft.
 

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I wonder what prosecutor is going to be put that charge in front of a jury, given the hypothetical above? You get home, BAC over 0.08, kill the intruder threatening your life or that of your family, and the prosecutor is going to ask 12 people to say you shouldn't have fired because of your BAC, but admit you had a right to do the killing. I don't think they would waste their time.
 
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