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Jury Instruction

District Court Instruction 7.670: Carrying a Loaded Firearm While Under the Influence

MassFLC › Jury Instruction
This is not law. It records what the body named below published, on the date shown. Commentary, guidance and model instructions may be persuasive, but none of them carries the force of law, and none is a statement of what the law requires.

Source: Criminal Model Jury Instructions for Use in the District Court
Revised: June 2022
Statute: G.L. c. 269, § 10H

Elements

The Commonwealth must prove three things beyond a reasonable doubt:

Element 1: Carrying or Control of Firearm

Firearm definition: Standard three-part test (weapon, capable of discharge, barrel under 16 inches). G.L. c. 140, § 121.

Carrying on person: A person carries something when they move it, no matter how slight. Requires no more than momentary possession. Carried "on their person" means physically handled, attached to the person, or in their clothing.

Control in vehicle: Not enough to prove defendant was present in same vehicle. Must prove defendant knew firearm was there and had both ability and intention to exercise control. Exclusive control not required.

Element 2: Loaded with Ammunition

Ammunition: any cartridge or cartridge case, primer, igniter, bullet, or propellant powder designed for use in a firearm. A firearm is loaded if ammunition is contained in the weapon or within a feeding device attached to it. G.L. c. 269, § 10(o).

Knowledge that firearm was loaded is NOT required (Note 2). Unlike § 10(a), section 10H does not include the modifier "knowingly." May be construed as strict liability. Kelly, 484 Mass. 53, 60 (2020).

Element 3: Under the Influence

Alcohol: Person need not be drunk. Under the influence means consumption of enough alcohol to reduce ability to safely carry/control a loaded firearm, by decreasing alertness or judgment, mental clarity, self-control, or reflexes. Commonwealth not required to prove defendant actually carried unsafely, only that ability was diminished. Amount varies by person. Veronneau, 90 Mass. App. Ct. 477, 479-80 (2016) (intoxication standard for OUI and loaded firearm while impaired are not necessarily the same). Riley, 48 Mass. App. Ct. 463, 465 (2000).

Marijuana/drugs/depressants/stimulants: Same standard adapted for the substance. Person must have used enough to reduce ability to safely carry/control a loaded firearm.

Breath/blood test: May be considered but is not sufficient by itself to prove under the influence. Unlike OUI, there is no per se BAC limit for this offense. Wall, 469 Mass. 652, 670-71 (2014).

Supplemental Instructions

1. Roadside Assessments Not scientific tests. Person may have difficulty for reasons unrelated to substance use. Jury decides weight. Evidence of roadside assessment performance, standing alone, is never enough to convict. Gerhardt, 477 Mass. 775, 785, 789 (2017).

2. Breath/Blood Test Reliability Jury may consider: whether test was administered within reasonable time; whether administrator was certified; pre-test procedures; device working order; proper administration; any other pertinent evidence.

3. Testing Delay Up to three hours between testing and alleged offense may be reasonable; facts and circumstances may suggest greater or lesser period.

Notes

Carrying vs. possession (Note 1): Section 10H was enacted after § 10(a) equated carrying with possession. Legislature presumably used "carrying" intentionally.

License not an element (Note 4): The statutory language "whoever, having in effect a license to carry firearms" is not intended to require the Commonwealth to prove licensure. It differentiates this crime from unlawful possession under § 10(a). Dobbins, 96 Mass. App. Ct. 593, 595-96 (2019).

Cases Cited