Legal Commentary

Five-Year No-Firearms Condition in Sentence for Misdemeanor Use-of-Weapons-While-Intoxicated Set Aside, Partly on Second Amendment-ish Grounds

By Eugene Volokh

From State v. Rogers (Ohio Ct. App., decided Monday) (one paragraph break added):

We find the five-year firearm condition/sanction against appellant for a misdemeanor violation of R.C. 2923.15(A) [using a weapon while intoxicated] under these circumstances was unreasonable, overbroad, and an unwarranted implication of his Second Amendment rights.

We have herein affirmed appellant?s conviction and in no way seek to diminish the danger of using a firearm while intoxicated, and we further recognize that appellant acted injudiciously in firing his weapon into the ground, at night, as a ?memorial? to his deceased dog. However, the incident took place entirely on appellant?s residential property in an unincorporated area; the State presented no evidence that appellant caused any harm to persons or property, nor that he ever intended to do so. As we noted above, the responding officers did not find it warranted to attempt to confiscate or seize the firearm at that time. Furthermore, the presentence investigation report gives no indication that appellant had been cited for this type of activity before, and his only criminal history appears to be two OVI convictions more than twenty years ago.

Upon review, we hold the trial court abused its discretion in this instance ordering the five-year sanction, and, pursuant to App.R. 12(D), we will remand the matter with directions to limit the sanction to six months, corresponding to the maximum jail sentence period for a first-degree misdemeanor.

Full post as published by The Volokh Conspiracy on November 17, 2010 (boomark / email).