Carrying a Concealed Weapon Charge After a DUI

[ctwforgood]

My question involves criminal law for the state of: Arkansas

She was actually charged with refusal to take a dui test because she was asking questions and the officer didn't waShe is a store manager and takes large sums of the money to the bank nightly and carried a .22 pistol in her console. We met with an expert attorney and he said that he could most likely get her off of the dui and laughed about the weapon charge and said that carrying a concealed weapon without a permit is now legal in Arkansas (as of 2013) I believe. He said that even a public defender could, or should, be able to get her off of the weapon charge. He literally wrote a massive book on dui laws, technicalities and all of that but there's just no way we can afford him unfortunately. The public defender seemed completely useless and basically told her that she wouldn't be able to do anything about the weapon charge. I'm imagine the defender will do exactly nothing for her, as I know they are extremely overburdened in Arkansas.

We were considering trying to find an affordable lawyer just to try to get her off the weapon charge but I guess that depends on what we can expect from the charges. The original attorney we spoke to, who is held in the highest regard in this area and among the dui law community in general, told us that in the town she was arrested in the judge always gives the same punishment for 1st dui which is 365 days in jail, 364 of which is suspended and would not apply unless she got another dui, and 1 day served which was counted as the night she spent in jail. Also, a interlock suspended license for 6 months, MADD classes, and a fine. He just laughed about the weapons charge but the public defender had a different take on it. Clearly the defender is nothing compared to the attorney we spoke to.

Any advice and input as to how to proceed, what can be expected etc would be greatly appreicated.

[cyjeff]

Beg or borrow the money for the better attorney. While no trial is a lock, experienced attorneys are worth it.

You say it is too expensive but have you truly thought about the long term cost? In everything from MASSIVELY increased auto insurance rates to job interviews, this issue will come to bear.

Find the money for a good attorney.

[free9man]

As was pointed out down the street, your highly regarded lawyer is apparently incorrect about the state of concealed weapons law for your state. He may be a DUI expert but must not work on any other criminal law. That's not a bad thing as specializing, especially in a tricky field like DUI, can be a good thing.

Is her employer aware she has the weapon? That could bite her, and them, in the butt if she were to have to use it.

[asa_jim]

Clearly the defender is nothing compared to the attorney we spoke to.

Excuse me, but the "defender" is an attorney. And it is just as clear to me that the PD is correct about the weapons charge and the attorney you propose paying so much money to is ignorant of Arkansas law in this regard. Public Defenders are fine attorneys who have far more trial experience than private attorneys in a given year. Their disadvantage is that they cannot spend as much time on each clients' case because of the huge case loads they carry. Not because they are less knowledgeable. In fact, the volume of cases they handle gives them vastly more knowledge and experience over a given period of time than a private attorney could ever achieve. If you have the resources to hire an attorney then you don't qualify for the services of a public defender in any case.

[PayrolGuy]

The law on carrying a weapon has been very muddled in Arkansas. First, by the legislature that wrote and passed a law that they didn't even fully understand. The State AG tried to clarify the law with a opinion and later the Governor (himself a former US Representative that acted as a prosecutor in the Clinton impeachment trial and former US District Attorney) wrote a letter on the issue to the commander of the Arkansas State Police.

But there hasn't yet been a case based on the law that has made it to the Arkansas Supreme Court (and I don't think one has made it to the appeals court either). So as I said it is muddled.

What we do know is there is a concealed carry law in the state that requires a permit. What the AG and the Governor have stated that open carry is legal. Any lawyer in the state of Arkansas that said "carrying a concealed weapon without a permit is now legal in Arkansas" as your "expert attorney" stated is not an expert and likely should be an attorney. There is some question on the legality of a loaded handgun in a glove box or anywhere in a car that it is easily accessible without a CCW permit.

[jk]

I see a problem with the law that may weigh against you:

SECTION 1. Arkansas Code § 5-73-119(e), concerning defense to prosecution for possession of a handgun in certain places, is amended to read as follows:

(7) The person is on a journey beyond the county in which the person lives, unless the person is eighteen (18) years of age or less;.

unless you were traveling outside or to or from traveling outside your home county, that wouldn’t seem to apply. I found no other sections that would apply to your use.

Another problem is where in her center console was the gun. Unless it was clearly visible as the cop walked up it may be construed it was concealed.

I don’t see the gun issue so simply resolved as the attorney claimed.

But in no way is carrying a concealed weapon without a permit legal in Arkansas. The confusion, in your state, involved open carry of a handgun. If the handgun was actually IN her center console, like in concealed, that is most assuredly a violation of the law.

5-65-205. Refusal to submit.

(a)(1) If a person under arrest refuses upon the request of a law enforcement officer to submit to a chemical test designated by the law enforcement agency, as provided in 5-65-202, no chemical test shall be given, and the person's motor vehicle operator's license shall be seized by the law enforcement officer, and the law enforcement officer shall immediately deliver to the person from whom the motor vehicle operator's license was seized a temporary driving permit, as provided by 5-65-402.

(2) Refusal to submit to a chemical test under this subsection is a strict liability offense and is a violation pursuant to 5-1-108.

(b) The Office of Driver Services shall then proceed to suspend or revoke the driving privilege of the arrested person, as provided in 5-65-402. The suspension shall be as follows:

(1)(A)(i) Suspension for one hundred eighty (180) days for the first offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance content of the person's blood or breath.

So one must define what “under arrest” means in this case (but if she was aware she was under arrest, the definition doesn’t matter and she is guilty). From what I can find a preliminary breath test (the roadside breathalyzer) does not fall under the implied consent laws. That would mean if you’re talking about a PBT, that shouldn’t be an issue. Once you are arrested you are subject to a test if the offficer requires it.

So, did she refuse a PBT or an official bac test (blood, breath, or urine)?

[PayrolGuy]

The law you quoted is titled "5-73-119. Handguns -- Possession by minor or possession on school property." 5-73-120 is what you want to look at.

Here is the opinion from the AG

Opinions on open carry:

In my opinion, Act 746's amendments to § 5-73-120 mean that (1) the statute only criminalizes a person’s "possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use" if he or she simultaneously has the intent "to attempt to unlawfully employ the handgun ... as a weapon" against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.

Opinions on Concealed Carry:

Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest a person may carry a concealed handgun in public without a properly issued concealed-carry license. In fact, except during a journey, it is likely that the Arkansas Supreme Court would allow the presumption that a person who has flouted the concealed-carry licensing scheme in Arkansas law by possessing a concealed handgun without a concealed-carry license has the requisite unlawful intent for a violation of § 5-73-120(a).


The confusion continued confusion comes from the issue "Is a loaded handgun in a vehicle's glove box a concealed weapon?"

[ctwforgood]

CLARIFICATION : ( I am unable to edit the original post) She was charged with "Carrying a Weapon 5-73-120 (A-misd). The attorney I spoke to didn't say that carrying a concealed weapon was legal, just that in her situation it wasn't illegal and that carrying a weapon didn't not imply unlawful intent and that he could easily get her off of the weapon charge.

Any lawyer in the state of Arkansas that said "carrying a concealed weapon without a permit is now legal in Arkansas" as your "expert attorney" stated is not an expert and likely should be an attorney. There is some question on the legality of a loaded handgun in a glove box or anywhere in a car that it is easily accessible without a CCW permit.

Upon further consideration, he did not say carrying a concealed weapon without a permit is not legal, just that in her situation, unlawful intent was not implied and that he could get her off of the charge. He is a very experienced and persuasive trial attorney with an outstanding track record. I just don't see how we can come up with the 5k down payment to hire him.

As was pointed out down the street, your highly regarded lawyer is apparently incorrect about the state of concealed weapons law for your state. He may be a DUI expert but must not work on any other criminal law. That's not a bad thing as specializing, especially in a tricky field like DUI, can be a good thing.

Is her employer aware she has the weapon? That could bite her, and them, in the butt if she were to have to use it.

I mispoke about what the attorney said, that was my fault.

Excuse me, but the "defender" is an attorney. And it is just as clear to me that the PD is correct about the weapons charge and the attorney you propose paying so much money to is ignorant of Arkansas law in this regard. Public Defenders are fine attorneys who have far more trial experience than private attorneys in a given year. Their disadvantage is that they cannot spend as much time on each clients' case because of the huge case loads they carry. Not because they are less knowledgeable. In fact, the volume of cases they handle gives them vastly more knowledge and experience over a given period of time than a private attorney could ever achieve. If you have the resources to hire an attorney then you don't qualify for the services of a public defender in any case.

I mispoke about what the attorney said and made a clarification. However, your post is a waste of time and does not give any of the advice or answers to our concerns and is of no help whatsoever. She does not have the money to afford an attorney, however I may be able to help out depending on how much money is involved. The PDs are notoriously underfunded, overworked, and unhelpful in Arkansas. Fact is attorney's are not created equal. Many are unhelpful parasites who take people's money just to hold their hands in court and do nothing for them. Conversely, many are outstanding attorneys and do care about their clients and aren't just out to collect a large sum of money for doing a tiny amount of paperwork and showing up at a courthouse. Considering the fact that the PD does not hold the same opinion on weapons carry as the attorney general does, I think the PD will do absolutely nothing for her.

The law you quoted is titled "5-73-119. Handguns -- Possession by minor or possession on school property." 5-73-120 is what you want to look at.

Here is the opinion from the Attorney General

Opinions on open carry:

In my opinion, Act 746's amendments to § 5-73-120 mean that (1) the statute only criminalizes a person’s "possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use" if he or she simultaneously has the intent "to attempt to unlawfully employ the handgun ... as a weapon" against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.

Opinions on Concealed Carry:

Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest a person may carry a concealed handgun in public without a properly issued concealed-carry license. In fact, except during a journey, it is likely that the Arkansas Supreme Court would allow the presumption that a person who has flouted the concealed-carry licensing scheme in Arkansas law by possessing a concealed handgun without a concealed-carry license has the requisite unlawful intent for a violation of § 5-73-120(a).


The confusion continued confusion comes from the issue "Is a loaded handgun in a vehicle's glove box a concealed weapon?"

Thank you payrolguy.

For some reason there is text missing from my original post. She never refused the alcohol test at the police station, she was just asking a lot of questions and eventually the officer got tired of talking to her and charged her with refusal even though the intended to take the test.

What penalty is she likely facing here in regards to the weapon? Jail time? She has never had any kind of criminal charges before. I don't see how we can afford the 5k down payment that the trial lawyer we spoke to requires. What can we expect if we go forward with the Public Defender? The public defender made it pretty clear that she wasn't of the same opinion as the attorney general. I know in most cases here, attorneys don't go to trial and don't really do anything for DUI charges. What about the weapon charge?

[jk]

The law you quoted is titled "5-73-119. Handguns -- Possession by minor or possession on school property." 5-73-120 is what you want to look at.

Here is the opinion from the AG

Opinions on open carry:

In my opinion, Act 746's amendments to § 5-73-120 mean that (1) the statute only criminalizes a person’s "possess[ing] a handgun on or about his or her person, in a vehicle occupied by the person, or otherwise readily available for use" if he or she simultaneously has the intent "to attempt to unlawfully employ the handgun ... as a weapon" against a person, and (2) this unlawful intent may not be presumed simply because that person possesses a loaded handgun.

Opinions on Concealed Carry:

Nothing in Act 746, § 5-73-120(a), or this opinion is intended to suggest a person may carry a concealed handgun in public without a properly issued concealed-carry license. In fact, except during a journey, it is likely that the Arkansas Supreme Court would allow the presumption that a person who has flouted the concealed-carry licensing scheme in Arkansas law by possessing a concealed handgun without a concealed-carry license has the requisite unlawful intent for a violation of § 5-73-120(a).

The confusion continued confusion comes from the issue "Is a loaded handgun in a vehicle's glove box a concealed weapon?"

Art 746 of 2013 was a bit misleading. My errror.

120 seems pretty clear to me:

a) A person commits the offense of carrying a weapon if he or she possesses a handgun, knife, or club on or about his or her person, in a vehicle occupied by him or her, or otherwise readily available for use with a purpose to employ the handgun, knife, or club as a weapon against a person.

c) It is a defense to a prosecution under this section that at the time of the act of carrying a weapon:

8) The person is in a motor vehicle and the person has a license to carry a concealed weapon pursuant to 5-73-301 et seq.

the intent here is obviously to use it against a person.

so a handgun that is in the car, unless that person has a concealed carry permit, is unlawful.

It does not state open carry within a car is lawful. It says carrying within a car is unlawful unless the person has a concealed carry permit.

I don’t see where there is any question regarding this.

The answer lf whether a handgun in a glovebox is considered a concealed weapon (although there is no need to address the question since the law specifically dissallows one from carrying a readily Available weapon Unless one possesses a concealed carry permit) is easily answered by 5-73-301 definitions for laws concerning concealed weapons;

1] "Concealed" means to cover from observation so as to prevent public view;

it seems you are misconstruing carrying a weapon in general and carrying a concealed weapon. The law regarding carrying weapons, in general, specifically precludes carrying such if the weapon in a vehicle is readily available unless one possesses a concealed carry permit. A handgun within ones arms reach In an unlocked compartment would be readily available.

[ctwforgood]

How is your post in any way beneficial to me,( the OP) and how does it answer any of the questions I have put forward? The intent of my post is not to argue the interpretation of the law. I am here for helpful advice and answers to questions that I have posed (if you have any experience or relevant information). Did you read my questions?? What are the likely penalties that she is facing, what can an attorney actually do for her that the public defender won't do, and in fact, will the public defender or other attorney that doesn't cost $7k + actually do anything to argue or fight the charges at all?

Also, is the intent "obviously to use against a person?" Every time a person has a gun it's to use against a person?? She had NO unlawful intent. We had been out of town at my family's farm target shooting with that pistol earlier in the day and the gun was still in her vehicle because she had not been home yet. Technically, she had been on a "journey" as the law mentions. I don't need the interpretation of the law, I need legitimate answers to the questions I have posed. So far I have gotten none. I'm beginning to think that I'm getting responses from attorneys who themselves take large sums of money from people and then don't actually do anything beneficial for them.