People v. Deroche: Possession of Firearm While Intoxicated in Your Home

The Court of Appeals case People v. Deroche answers the question: Can you be under the influence in your home when there is a firearm in the house?

Facts of the Case

Two police officers were called to the Novi home of the Defendant on the report of a verbal fight. The police officers were told the Defendant had run off into the woods. The officers couldn’t find him so they left. The officers came back two hours later. A friend of the Defendant told the police Defendant had a gun inside the home but that he did not see Defendant with a gun.

Police officers spoke with the Defendant’s mother-in-law, who informed them that she had taken the gun and hidden the gun in a trash can in the laundry room. Defendant was arrested for possession of a firearm while intoxicated.

Defendant sought to dismiss the charge based on the Second Amendment, as well as to suppress the evidence based on unlawful entry into his home.

The Issue

The issue for the Court of Appeals was whether the Second Amendment prevents a prosecution for possession of a firearm while intoxicated when the claim is the defendant had constructive possession of a firearm.

Constructive possession means a person knows where an object is located and has reasonable access to it. This is in contrast to actual possession, where an object is in the hands or located on a person.

The Law on the Right to Bear Arms

This case revolved around two laws.

The First law is the right to bears arms coming from the Federal constitution and the Michigan Constitution.

The Second Amendment of the Constitution states, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The Michigan Constitution has a similar provision, stating “Every person has a right to keep and bear arms for the defense of himself and the state.”

The case of District of Columbia v. Heller articulated the Second Amendment to mean, “At the core of the Second Amendment, is the right of law abiding, responsible citizens, to use arms in defense of hearth and home.”

The Michigan Law regarding Possession of a Firearm While Intoxicated

This is the second relevant law to the case.

Under MCL 750.237, a person shall not carry, possess, use, control, or discharge a firearm while

  • Under the influence of alcohol, a controlled substances, or a combination,
  • Having a blood alcohol content of .08 or over, or
  • Being visibly impaired to handle a firearm.

Regulation of Firearms

The legislature may design laws to regulate firearms for safety purposes. The prohibition on the use of firearms while drunk or high would be one such law.

However, the Court believed the application of the possession while intoxicated law to this situation was too much. The court first noted that the Defendant never had actual possession of the firearm but only constructive possession.

The Court went on to say, “Thus, to allow application of this statute to defendant under these circumstances, we would in essence be forcing a person to choose between possessing a firearm in his home and consuming alcohol. But to force such a choice is unreasonable. As the facts illustrate, there was no sign of unlawful behavior or any perceived threat that a crime involving a handgun would be committed.”

The Court looked to other Michigan laws regarding firearms for support. The Court took notice that there were several laws that regulated a person’s ability to carry a concealed license when while intoxicated. For example, a person may not carry a concealed pistol while under the influence. However, a person could be intoxicated in a vehicle with a pistol so long as the pistol is secured. In other words, the legislature is concerned with intoxicated people actively possessing or using a firearm but not with an intoxicated person simply being near a firearm.

What Does This Case Mean For You

This means you may have a firearm in your home and be intoxicated at the same time without worry of breaking the law. Being intoxicated in the general vicinity of a firearm is not enough to make someone guilty under the possession while intoxicated law.

Importantly though, any exercise of actual possession of the firearm while intoxicated would mean you would likely lose this protection, even if the person is in his or her own home.

Call Us

Call Sam Bernstein at 734-883-9584 or e-mail at

Sam Bernstein is an Ann Arbor and Ypsilanti Criminal Lawyer.

ArborYpsi Law is located at 2750 Carpenter Rd #2, Ann Arbor, MI 48108.

Read More on Gun Laws

  • CPLs and Drinking Laws
  • Firearms Civil Infractions
  • Possession of a Firearm While Intoxicated
  • What Convictions Will Disqualify Me From a CPL?
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