In The News

In The News

Friday, February 1, 2013

What’s More Dangerous? Consuming Alcohol Before Driving or Consuming Alcohol Before Having Access to a Gun in Your Home?

By Michael Nichols
Categories: Carry and Conceal

The Michigan Court of Appeals upheld the dismissal of gun charges against a politician. That result is not surprising says Michigan Criminal Defense Attorney Mike Nichols. Nichols says “the court of appeals upheld the lower court rulings that the charges should be dismissed because as applied, the statute was an unconstitutional attack on the right to bear arms in your own home.” Former Michigan House Speaker Craig DeRoche was charged with violating the state law that prohibits possession of a gun while intoxicated. Nichols says the appellate court’s finding was limited: “the court said that on these facts the statute was unconstitutional – meaning ‘as applied’ the statute infringed on constitutional rights to bear arms.” The statute at issue is MCL 750.237. A link to the statute’s full text is here:

Police entered DeRoche’s Detroit-area home in 2011 after a complaint about a verbal altercation. DeRoche refused to come downstairs at the request of 2 police officers. DeRoche was eventually arrested after several hours of investigation and return calls to the home. The witnesses included DeRoche’s mother-in-law, who stated that she took the gun that he previously possessed and hid it away. A District Judge dismissed the case because the police were in the home too long without permission or a warrant along with the 2d Amendment grounds. The circuit court upheld the dismissal under the 4th Amendment violation. The prosecutor appealed again. The Court of Appeals held:

“While acknowledging “the problem of handgun violence in this country,” the Supreme Court stressed that the “Constitution leaves . . . a variety of tools for combating that problem, including some measures regulating handguns. . . . But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.” Id. at 636 (emphasis added).”

In other words, the legislature cannot prevent a person from possessing weapons in his or her own home. The court held that in this case, the theory of possession of the handgun while intoxicated was what is called “constructive possession.” In other words, the prosecutor wanted to proceed on grounds that the gun was in DeRoche’s home and within his access while he was intoxicated. The Court of Appeals found that the prosecutor’s theory offended the constitution because of the constitutional protection of possessing a weapon in one’s home for self-defense. A person could never consume alcohol in their own home if they kept a weapon for protection.

Nichols believes that the court got it right. “However, as I reviewed the statute, I found it ironic that the legal standard is ‘under the influence’ or ‘.08 grams/210 liters of breath or 100 milliliters of blood.’ Who came up with that and why does it just happen to be the exact same standard as the legal threshold for operating a motor vehicle? What studies support the proposition that it is no more dangerous to handle a weapon than to operate a motor vehicle with the same level of alcohol in your body?” The charge against former Speaker DeRoche for now is dismissed. Nichols says “Mr. DeRoche went through hard times at the end of his career and hopefully he has nowhere to go but up after this episode.” For the criminal defense attorney on the cutting edge and who is committed to results, call Mike Nichols at 517.432.9000 or

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.