Intoxicated Firearm Possession in Wisconsin

Under Wisconsin law, as outlined in Wisconsin statute § 941.20(1)(b), it is illegal to be armed with a firearm while under the influence of drugs or alcohol.  The firearm in question does not necessarily need to be fired for charges to be filed. It can simply be on your person or within your reach or control.

As a Class A misdemeanor, which is the most serious classification under Wisconsin law, a conviction for intoxicated firearm possession can carry fines up to $10,000 and/or nine months in jail. Beyond that, a judge can impose additional conditions that either add to or serve in place of jail time. These include:

• • Probation: Generally a 1-2 year period under supervision of the Department of Corrections with strict conditions that must be met.
• • Mandatory Community Service: With the nature of the service and total hours spent repaying the community being set by the judge.
• • Treatment or Educational Programs: These can run the gamut of rehab programs, anger management courses, counseling, firearm safety classes or mandatory assessment of alcohol or other drug abuse, known as AODA.
• • Restrictions of Rights: This can include barring those convicted from possessing firearms during probation or from being within a certain distance of people or places. These no-contact restrictions often occur when the incident was linked to a conflict or domestic disturbance.
• • Payment of Restitution: This could include payments to victims or to repair property damage.

Because the law allows for a broad interpretation, there are several scenarios that could constitute Intoxicated Firearm Possession. A hunter who was staying at his cabin shouldered his rifle after drinking several beers; despite never firing his rifle, he was charged with 12 months probation during which he had to surrender his firearms, served 50 hours of community service, and was sent to mandatory counseling. Following a bar fight, police found that one of the belligerents involved had a holstered handgun on his person; even though he had his concealed carry license, he was sent to anger management and had to undergo AODA assessments while giving up his guns during probation.

And we see these scenarios play out time and time again. A person found intoxicated in her own home when police arrived to check on a noise complaint had a pistol on her coffee table and served six months of sobriety monitoring, community service and firearm safety classes. Another was stopped for OWI, and served probation and paid towing fees because of a shotgun in their trunk.

This last scenario, in which a gun charge is added to an OWI charge, is one that comes up frequently simply because people have firearms in their car and thus “in their possession” under Wisconsin law. The state’s “constructive possession laws” essentially dictate that, even if you are not physically holding a weapon, you are in possession of it if you are aware of its presence and it is within reach. Even if you are simply storing it and do not intend to fire it, you can still be charged under the law. In fact, those charged were often only trying to do the right thing, informing the officer of the weapon in their vehicle and being rewarded with additional charges.

And there are several ways that charges can “stack” on top of a firearm charge. One man who was pulled over after swerving across the lane divider was asked if there were any weapons in his car. Fearing further charges, he replied that there weren’t. The officer found a pistol in his glovebox, and he was ultimately charged with OWI, intoxicated firearm possession and obstruction of justice for lying about the gun. Another person, already arrested for OWI and intoxicated firearm possession, was also charged with disorderly conduct while armed after causing a scene at the police station. Even though he did not have the firearm on his person at the time, prosecutors were still able to secure a disorderly conduct while armed charge.

Defending Against Intoxicated Firearm Possession Charges

At Tracey Wood & Associates, we have a strong track record of defending our clients against Intoxicated Firearm Possession charges, building each defense on a strong foundation of thorough research and exhaustive attention to detail.

One client, who had been drinking in his own home, answered the door one night to find police responding to a noise complaint. Seeing a rifle locked in a cabinet in a different room, they charged him with intoxicated possession. We were able to successfully argue that the gun, being locked up and in a different location, was not easily in reach and did not meet the legal requirements for constructive possession.

In another case, our client was accused of being intoxicated and found with a handgun in her purse. The lab that tested her blood was found to have mishandled the sample, and we argued that the state could not prove intoxication as the evidence was in doubt. This is a common defense, as anything from testing procedures to the breathalyzer itself can have issues, and several medications or conditions such as diabetes can skew test results.

One client was forced to defend his home when an intruder broke in. The client was able to frighten the prowler off with his shotgun, but prosecutors attempted to charge him with intoxicated possession as he’d been drinking at the time of the evidence. As Wisconsin law allows an exception in cases where life, health or property are threatened, we were able to argue that our client had acted in self-defense.

And there are several other defenses against these types of charges. If a person merely handled a firearm for a brief moment, unaware that they were over the legal limit for intoxication, or that they simply did not have active control over the weapon, we can argue that the possession itself was insufficient. If law enforcement failed to follow proper procedures during the arrest, for example entering a home without a warrant, we can challenge the charges on the grounds of the Fourth Amendment.

And beyond challenging the evidence against our clients, there are several strategies we employ to keep clients from going to jail. These include:

Deferred Prosecution Agreement: This involves convincing the judge to allow a client to complete conditions such as community service or counseling, pausing the case while they do so. Upon successfully completing the judge’s conditions, the case is dismissed.

First Offender or Diversion Programs: In cases where the charges are of a lower degree, diversion programs allow offenders to avoid conviction by attending classes, undergoing treatment or consenting to being monitored. These programs are also open to first offenders, who an also see charges dismissed or reduced to a lesser charge such as disorderly conduct following a period or probation.

Negotiating with Prosecution: This can involve bargaining for stipulated orders of dismissal, which is a set of temporary conditions with charges being dropped upon successful completion. It can also involve arguing for reduced charges or replacing a conviction or jail time with a period in rehab, counseling or alcohol treatment.

How We Can Help

Each of these defenses is built from one simple word: preparation. And that has become Tracey Wood & Associates biggest calling card. We walk into each case with a mountain of analysis and a thoroughly researched understanding of your case. That doesn’t just mean scouring through every detail and piece of evidence, it also means building a strong relationship with you based on trust and confidence. We know your case, we know the judge, we know the prosecutors, and we know the weaknesses in their case before the trial even begins.

Armed with that preparation, can negotiate with prosecution, reduce charges against you and possibly even see them dismissed before trial. And if it comes to a court date, we’ve proven we can compel a bench or jury to see your side of the story. We dig deeper to prepare, fight harder to succeed and we help clients like yourself every day.

It all starts with a free review of your case. Call Tracey Wood & Associates today and let’s begin taking back control of your life.