Possession of a Firearm While Intoxicated in Florida: Penalties

In Florida, possession of a firearm while intoxicated is not, by itself, a crime. The state’s statute on the subject, Section 790.151, targets something narrower: handling a loaded firearm in your hand while your normal faculties are impaired by alcohol, certain inhalants, or a controlled substance. A holstered, cased, or stored gun does not meet the legal definition of “use,” even if the owner has been drinking. Cross the line the statute actually draws, though, and you face a second-degree misdemeanor plus serious consequences for your concealed carry license.

What the Statute Actually Prohibits

Florida law defines “use a firearm” as either discharging it or having it “readily accessible for immediate discharge.” “Readily accessible for immediate discharge” is then defined as loaded and in the person’s hand.¹ That is the entire mechanical test. A firearm in a holster, in a case, in a safe, or sitting on a table is not being “used” under this statute, no matter how intoxicated the owner is.

The prohibited substances are alcohol, chemical inhalants listed under Section 877.111 (toluene, acetone, nitrous oxide, and similar solvents), and any controlled substance under Chapter 893, when the person’s normal faculties are impaired.¹

What Counts as Impairment

Section 790.151 does not set a blood alcohol threshold. There is no 0.08% line in this statute. The standard is whether your normal faculties — seeing, hearing, walking, talking, judging distances, making decisions — are actually impaired. Officers assess that through field sobriety tests, breath or blood tests, and observation.

Florida’s companion statute, Section 790.153, includes an implied consent provision: anyone who uses a firearm in the state is deemed to have consented to an approved breath test to determine alcohol content.²

The practical effect cuts both ways. You could be charged at a BAC well below 0.08% if an officer concludes your faculties are impaired. You could also, in theory, avoid a conviction above 0.08% if the state can’t prove actual impairment. The impairment-based standard gives prosecutors flexibility and makes outcomes harder to predict than a bright-line BAC rule would be.

Penalties for a Conviction

Using a firearm while impaired is a second-degree misdemeanor.¹ The maximum sentence is 60 days in jail and a fine of up to $500.³ That’s the lowest criminal tier in Florida.

The sentence is often not the worst of it. A conviction creates a criminal record that shows up on background checks. Courts can impose probation with conditions like substance abuse evaluation, treatment, and community service, and those programs carry their own costs. And the conviction triggers a legal presumption that puts your concealed carry license at risk, which for many people ends up mattering more than the jail exposure.

The Self-Defense Exception

Subsection (5) of the statute contains one explicit exception: it does not apply to a person exercising lawful self-defense or defense of their property.¹ That is the only carve-out. The statute does not contain a blanket exemption for on-duty law enforcement.

The exception has practical logic. If someone breaks into your home late at night after you’ve been drinking, the legislature did not intend for you to face weapons charges for defending yourself. But you still have to satisfy Florida’s broader use-of-force rules, including a reasonable belief that force was necessary to prevent imminent harm. Intoxication can cut against that argument if it clouded your perception of the threat.

What It Does to Your Concealed Carry License

A conviction under Section 790.151 creates a legal presumption that you chronically and habitually use alcohol or other substances to the point of impairment.⁴ That presumption disqualifies you from a concealed carry license under Section 790.06(2)(f). The Florida Department of Agriculture and Consumer Services, which administers licensing, can deny a new application or revoke an existing license on that basis.

The department can also temporarily suspend a license or pending application when the licensee is arrested or formally charged with a disqualifying crime, before any conviction.⁵ Related eligibility rules independently disqualify anyone found guilty of a controlled substance offense under Chapter 893 within the past three years or committed for substance abuse under Chapter 397.⁴

Carrying in Bars and Alcohol-Serving Establishments

Separate from the impairment rule, Florida bars concealed carry permit holders from bringing firearms into the portion of an establishment primarily devoted to dispensing alcohol for on-premises consumption.⁴ In practice, that means the bar area of a restaurant or a standalone bar. The dining section of a restaurant that also serves drinks is generally not covered, but the bar section is off-limits.

This violation is also a second-degree misdemeanor with the same 60-day and $500 maximums. You don’t have to be intoxicated. Simply carrying into the prohibited area is enough, and this is one of the more common ways permit holders run into trouble.

Federal Prohibition for Drug Users

Florida’s statute addresses impairment at the moment you handle a firearm. Federal law is broader. Under 18 U.S.C. § 922(g)(3), anyone who is an unlawful user of or addicted to a controlled substance is prohibited from possessing any firearm or ammunition at all, regardless of whether they are impaired at the time.⁶ The federal penalty runs up to 15 years in prison.⁷

This layer matters for marijuana users in Florida, including medical marijuana cardholders. Marijuana remains a Schedule I controlled substance under federal law even though Florida has legalized medical use, and current users are federally prohibited from possessing firearms.

Common Defenses

The definition of “use” is often the strongest defense. If the firearm was not loaded and in the defendant’s hand, it doesn’t fit the statute, and the charge shouldn’t stick. Attorneys regularly test whether the state can prove the gun was actually in hand and loaded at the moment of the encounter rather than holstered, cased, or stored.

Challenging the impairment finding is the other main route. Without a fixed BAC threshold, the state has to prove your faculties were actually impaired. That opens the door to questioning the reliability of field sobriety tests, presenting witnesses who observed you behaving normally, or introducing expert analysis of how a particular substance affected you at a given dose.

Involuntary intoxication is a recognized defense but requires substantial evidence, such as toxicology results and witness statements. The statutory self-defense exception is available when using the firearm was necessary to prevent imminent harm or protect property, subject to Florida’s general self-defense requirements.¹

Because a state charge can bring concealed carry consequences and, in some situations, parallel federal exposure, getting a defense attorney involved early tends to change how these cases end.

1
Justia Law. Florida Statutes 790.151 – Using Firearm While Under the Influence of Alcoholic Beverages, Chemical Substances, or Controlled Substances; Penalties
2
Florida Senate. Florida Statutes 790.153
3
Florida Senate. Florida Statutes Chapter 775 – Penalties; Applicability of Sentencing Structures
4
Justia Law. Florida Statutes 790.06 – License to Carry Concealed Weapon or Concealed Firearm
5
Florida Senate. Florida Statutes 790.06 – License to Carry Concealed Weapon or Concealed Firearm
6
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts
7
Office of the Law Revision Counsel. 18 USC 924 – Penalties