Technically yes, you can be convicted of any crime if you do not have a skilled criminal defense attorneys fighting for you. Prosecutors across East Tennessee believe that “impairment” for possession of a firearm is different than the level of proof needed to prove impairment for DUI. However, that is simply not true. The definition of “under the influence” that a judge will instruct a jury at a jury trial is the same for DUI and possession of a firearm. This becomes very important for your defense attorney to argue because both a DUI and possession of a firearm include the handling of a deadly weapon and therefore require the same level of impairment to be found “under the influence.” And this leads to our primary defense in these cases that will be discussed below.

While police are not required, they should. Every officer is trained by the National Highway Traffic and Safety Administration on how to prove an individual is impaired, specifically for DUI, but our criminal defense attorneys get officers to admit under oath that they are trained in impairment detection. That impairment detection comes from their DUI training. Then, we get them to admit that they are trained that standardized field sobriety testing is the most critical evidence to make a non-arbitrary conclusion that an individual is impaired, and chemical tests are the definitive way to prove impairment or a defendant’s innocence. 

Consequently, where an officer does not use the tools and their training to prove impairment, it becomes awfully difficult for the State to prove their case. Even more problematic is that our client was not provided the opportunity to prove their innocence. A blood test provides definitive proof, if deemed reliable, of an individual’s blood alcohol content or drug levels in the human body. So, an officer’s failure to request such evidence not only hurts the state’s ability to prove their case beyond a reasonable doubt, but it also prevents a defendant from having evidence that could have proved their innocence. As such, in such cases not only do we cross-examine the officer about their training on proving impairment and the tools available to prove it, but we also file a motion requesting the judge inform the jury that the state failed to collect evidence that could have been favorable to the defendant.

Maybe. If found not guilty at all jury trial a defendant is entitled to retrieve possession of a firearm. However, if the case results in a dismissal through negotiations, your criminal defense lawyer must ensure that forfeiture of the firearm is not a condition of the dismissal. The state may or may not agree to the return of the property depending on the level of evidence of impairment. For example, if the state thinks that the defendant was likely impaired but the evidence is not strong enough to convince a jury beyond a reasonable doubt to avoid a trial they may offer to dismiss the case but on a condition of forfeiture of the weapon. It is simply a case by case basis where your attorney should discuss the potential return of the property with the prosecutor. Any specific reasons that the return of the property is necessary can increase the chances of the gun being returned such as whether the gun was passed down to you by a family member so there is sentimental value that cannot be replaced by going to the store to purchase a new gun.

While the State must establish that you were “under the influence” if you were not in a restaurant or bar, the standard changes when you are in a bar or restaurant. When in an establishment that sells alcohol, the standard is much lower at you simply consuming alcohol at the establishment. So, having a beer, cocktail or wine can result in you being charged and convicted of having a gun while consuming alcohol. Firearm safety classes, alcohol classes and other conditions should be discussed with the prosecutor in an endeavor to get the charges dismissed without having any criminal history, especially where there is no proof of impairment. Those conditions can also be discussed in the case of impairment to mitigate the charges and potentially get the case dismissed and expunged from your record.