BILL NUMBER: S5785
SPONSOR: SEPULVEDA
 
TITLE OF BILL:
An act to amend the penal law, in relation to possession of a firearm,
rifle or shotgun while under the influence of alcohol or drugs; and to
repeal subdivision 3 of section 265.01 of such law relating to criminal
possession of a weapon in the fourth degree
 
PURPOSE:
The measure prohibits individuals from carrying guns if their level of
intoxication would make it unlawful to operate a motor vehicle under the
law.
 
SUMMARY OF PROVISIONS:
Section 1: Provides that carrying a gun while drunk will be punishable
by a fine of up to $1,000 as well as the other penalties applicable to a
Class A misdemeanor.
Section 2: Defines "drug" as the Vehicle and Traffic Law does in
sections pertaining to driving while impaired by drug use.
Section 3: Repeals subdivision 3 of section 265.01 of the Penal Law.
Section 4: Amends § 265.01 of the Penal Law to make the language gender
neutral and further adds a new subdivision (12), which defines the class
A misdemeanor of Criminal Possession of a Weapon in the Fourth Degree.
The new subdivision applies to any person who possesses a gun outside
his or her home while in such condition that he or she would not be
allowed to drive under the NYS Vehicle and Traffic Law. Specifically,
the Law covers possessing a handgun, rifle, or shotgun when one's abili-
ty to safely do so is impaired by alcohol and/or drugs, or while over
.08 percent blood alcohol content. This new crime does not apply to
conduct in one's own home.
Section 5: Subdivisions 9 and 10 of section 265.01 of the Penal Law are
renumbered as subdivisions 10 and 11.
Section 6: Amends various paragraphs of section 265.20(a) of the Penal
Law to specify that the prohibition on carrying a gun while drunk
applies equally to holders of firearms licenses and to other protected
classes of people who cannot be charged with criminal possession of a
weapon under current laws.
Section 7: Adds two new sections, 265.70 and 265.75, to the Penal Law so
that police can enforce the new ban on carrying guns while drunk with
breathalyzers and other chemical tests, just as they can require such
tests of drivers who commit moving violations or are involved in acci-
dents. Someone who carries a gun in a hunting area or shooting range
will be subject to field testing only if they appear to be drunk and
thus committing the new crime. In some cases refusal to take such a test
could lead to suspension or revocation of a firearms license, as it can
lead to suspension or revocation of a driver's license. Section 265.75
states that the results of a test will be admissible in the same way
that they would be admissible in a DUI case under the current Vehicle
and Traffic Law, including setting out presumptions about what blood
alcohol levels lead to impairment.
Section 8: Makes conforming changes to section 400.00 of the Penal Law,
which governs firearms licenses.
Section 9: Requires that this law take effect 180 days after the bill is
enacted.
 
JUSTIFICATION:
Over 40,000 Americans die every year as a result of gun violence - an
average of 118 per day. The mixture of guns and alcohol can be a deadly
combination. This legislation is designed to prevent people from carry-
ing guns while they are intoxicated by alcohol or drugs, which increases
the risks of intentional violence, accident, and suicide. Without
infringing on existing rights to have a gun, the bill sends a clear
message that people who intend to go drinking should leave their guns at
home.
This legislation will prohibit people from carrying guns if their level
of intoxication would prohibit them from driving under the law. It will
apply to individuals whose blood alcohol content exceeds .08 percent or
whose ability to safely possess a gun is actually impaired by alcohol or
drugs. Police officers will use common-sense factors like staggering,
slurred speech, smell of alcohol, and the results of field sobriety
tests to determine who is and who is not impaired. In cases of accident,
gun crime, or other suspicious behavior, they can require breath or
other chemical testing. In all these ways, the bill parallels provisions
of existing law that ban driving under the influence of alcohol or drugs
and that allow mandatory testing of drivers. The legislation does not
regulate gun possession or drinking within one's own home. Violation of
this law will be a Class A misdemeanor punishable by one year in jail
and a $10,000 fine. Most other states already restrict gun carrying by
people who are drunk or have drinking problems. At least twenty have
laws similar to this bill that ban carrying of guns while drunk. For
example, Missouri makes it a misdemeanor to possess a gun while
"substantially impaired" by any substance, or a felony if the gun is
loaded. The cities of Rochester and Saratoga Springs (2023) have passed
local ordinances to this effect.
 
LEGISLATIVE HISTORY:
S.7646 of 2023-2024: Referred to Codes;
(2009-2010)- A10332A Amended and recommitted to Codes
(2011-2012)- A5268A Amended and recommitted to Codes
(2013-2014)- A5663 Held in Codes
(2015-2016)- A3579 Referred to Codes
(2011-12)- S1679A Referred to Codes
(2013-14)- 53587 Referred to Codes
 
FISCAL IMPLICATIONS:
This legislation will not impose new costs on the State of New York.
 
EFFECTIVE DA LH:
The act will take effect 180 days after the bill is enacted.

Statutes affected:
S5785: 80.05 penal law, 80.05(1) penal law, 265.00 penal law, 265.01 penal law, 265.01(3) penal law, 400.00 penal law, 400.00(11) penal law