Carrying a firearm while intoxicated is a misdemeanor or a felony depending on the circumstances, and in most states a straightforward first offense is charged as a misdemeanor. The charge escalates to a felony when aggravating factors are present: discharging the weapon, injuring someone, an extremely high blood alcohol concentration, being in a sensitive location, or a prior record. No federal statute directly bans possessing a gun after drinking, so the classification comes down to state law and how the facts of the incident line up against that state’s escalation triggers.1Bureau of Alcohol, Tobacco, Firearms and Explosives. Identify Prohibited Persons
The Default Is a Misdemeanor
Roughly half the states have specific statutes criminalizing carrying or using a firearm while intoxicated. These laws typically set a BAC threshold, often 0.08% to mirror the drunk driving standard, and treat exceeding that limit while armed as a standalone offense. On a clean record with nothing more than the intoxicated possession itself, the charge lands as a misdemeanor.
Misdemeanor convictions generally carry fines from a few hundred to a few thousand dollars, possible jail time of up to one year, and a probation period that may include mandatory substance abuse treatment. A low-level misdemeanor might cap jail exposure at 180 days; a first-degree misdemeanor could allow up to a full year. States without a dedicated firearms-and-intoxication statute aren’t necessarily lenient — prosecutors there can still bring reckless endangerment, disorderly conduct, or public intoxication charges, and the classification tracks whichever statute they use.
What Pushes the Charge to a Felony
Felony treatment kicks in when something more than simple intoxicated possession is involved. The escalation factors are consistent across states that have them:
- Discharging the weapon or causing injury. This is the most reliable trigger. If an intoxicated person fires the gun, even accidentally, and someone is seriously hurt, the charge will almost certainly be a felony. Causing a death while intoxicated and armed can carry up to 15 years in prison in states with specific escalation statutes.
- Extremely high BAC. Some states impose enhanced penalties when the BAC significantly exceeds the standard limit. A BAC of 0.15% or higher can push a charge from misdemeanor to felony in certain jurisdictions, similar to aggravated DUI structures.2National Conference of State Legislatures. Increased Penalties for High Blood Alcohol Content
- Location. Being armed and intoxicated in schools, government buildings, bars, or other designated sensitive areas can upgrade the charge.
- Prior convictions. A history of firearms offenses, violent crimes, or earlier intoxicated-carry convictions makes felony charges far more likely. Many states have repeat-offender provisions that automatically escalate the classification.
These factors compound. A person with a prior conviction who discharges a weapon while heavily intoxicated in a public place can face multiple overlapping felony charges rather than one elevated count.
Once the charge crosses into felony territory, state-level penalties escalate sharply: prison sentences of several years and fines of $5,000 to $10,000 or more. When injury or death results, sentences of 5 to 15 years become possible under escalating penalty structures. Extended probation with weapons restrictions, regular check-ins, and alcohol monitoring often follows any custody time. Defense costs alone are substantial. Felony representation commonly runs from several thousand dollars to well above $25,000 depending on complexity and whether the case goes to trial, and that cost exists regardless of the outcome.
What “Carrying” and “Intoxicated” Actually Mean
The definition of carrying reaches beyond a holstered pistol. Most states recognize both actual possession, where the firearm is physically on your person, and constructive possession, where the firearm is within your reach and control. A handgun in the glove compartment, a rifle behind the truck seat, or a pistol in a bag at your feet all qualify. If you could grab it, you’re carrying it for legal purposes.
Intoxication is measured two ways, and prosecutors often can use either. The first is a per se BAC standard, most commonly 0.08%. Blow above that number and the legal definition is met automatically, with no separate proof of impairment required. The second requires the prosecution to show that alcohol or another substance impaired your mental or physical abilities to the point where you couldn’t handle a firearm responsibly. Slurred speech, unsteady movement, and failed coordination tests support that standard. Some states use both approaches, giving prosecutors two independent paths to conviction.
One nuance worth flagging: a handful of states set the BAC threshold for armed intoxication lower than 0.08%. You could test legal to drive but illegal to carry.
A Felony Conviction Triggers a Lifetime Federal Firearms Ban
The felony-versus-misdemeanor line matters far beyond the sentence itself. Under 18 U.S.C. § 922(g)(1), anyone convicted of a crime punishable by imprisonment for more than one year — the federal definition of a felony — is permanently barred from shipping, transporting, receiving, or possessing firearms.3Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts Violating that ban is itself a federal felony punishable by up to 15 years, a ceiling raised from 10 years by the Bipartisan Safer Communities Act in 2022.4Office of the Law Revision Counsel. 18 USC 924 – Penalties
A single felony conviction for intoxicated firearm possession doesn’t end with a prison sentence and a fine. It permanently changes your legal relationship with firearms. You cannot own, buy, or hold a gun for the rest of your life unless the conviction is overturned, expunged, or you receive a pardon or specific federal relief. A misdemeanor conviction generally avoids this ban, which is why the classification decision drives so much of the strategy in these cases. One exception: a misdemeanor conviction for domestic violence triggers its own separate permanent firearms ban under a different subsection.1Bureau of Alcohol, Tobacco, Firearms and Explosives. Identify Prohibited Persons
Controlled Substances Are a Separate Federal Offense
Federal law is silent on alcohol and firearms but takes a hard line on drugs. Under 18 U.S.C. § 922(g)(3), anyone who is an “unlawful user of or addicted to any controlled substance” is federally prohibited from possessing any firearm or ammunition.3Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts This is a standalone federal felony carrying up to 15 years in prison.4Office of the Law Revision Counsel. 18 USC 924 – Penalties
Marijuana users are the group most often caught by this. Cannabis remains a Schedule I controlled substance under federal law, so a regular marijuana user cannot legally possess a firearm under federal law even in states where recreational use is legal. A revised federal rule effective January 2026 narrowed the definition of “unlawful user” to require regular use over an extended period continuing into the present, and it excludes a person who has stopped using. Isolated or sporadic use no longer qualifies.5Federal Register. Revising Definition of Unlawful User of or Addicted to Controlled Substance Proving you’ve stopped, though, is your burden during a prosecution.
Effect on a Concealed Carry Permit
Even a misdemeanor conviction can cost you the permit. Many states mandate automatic suspension or revocation upon conviction for intoxicated carry, with suspension periods and reapplication waiting times varying by state. Some impose a six-month suspension for lower-level offenses and a one-year prohibition on reapplying for more serious ones. In states without automatic revocation, the issuing authority typically has discretion to hold a hearing and decide.
This consequence runs independently of the criminal sentence. Even after you’ve served time, paid fines, and finished probation, the permit revocation stands on its own timeline. Regaining a permit usually requires waiting out the full prohibition period, demonstrating compliance with all court-ordered conditions, and reapplying from scratch. Some states require completion of a firearms safety course first. A felony conviction eliminates the possibility entirely, because federal law prohibits the person from possessing firearms at all.
Common Defenses
The most effective defenses attack the specific elements the prosecution must prove. Challenging BAC accuracy is common. Breathalyzers require regular calibration, and blood draws must follow proper chain-of-custody procedures; if the equipment wasn’t maintained or the sample was mishandled, the BAC result may be excludable.
Contesting whether the defendant was actually carrying is another frequent approach. If the gun was locked in a trunk or otherwise not readily accessible, the constructive-possession argument weakens. The prosecution has to show the firearm was within immediate reach and control, and the facts don’t always support that.
In states using an “under the influence” standard rather than a per se BAC limit, the defense can argue the person wasn’t actually impaired to a degree that affected safe handling, even after drinking. Officer observations, video footage, and witness testimony all come into play.
Constitutional challenges have also gained traction since the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which required firearms regulations to be consistent with the nation’s historical tradition of firearm regulation. Some defendants have argued that broad intoxicated-carry statutes lack sufficient historical grounding. Courts have reached mixed conclusions, and the legal landscape on this remains unsettled.
Restoring Firearm Rights After a Conviction
After a misdemeanor, the path back is relatively straightforward in most states. Once probation is complete and any permit suspension period has elapsed, you can typically reapply for a concealed carry permit and resume purchasing firearms, assuming no other disqualifying conditions.
Felony convictions are a different problem. The federal ban under 922(g)(1) is permanent unless actively reversed through a narrow set of channels. A full pardon from the state governor for state convictions, or from the President for federal convictions, can restore firearms rights. Some states allow expungement of certain felony convictions, which may remove the federal disability, though this varies by jurisdiction and offense. Federal law also provides for relief through 18 U.S.C. § 925(c), which allows the Attorney General to grant individual exemptions. Historically that program has been severely underfunded and processing has been slow.
None of these routes are quick or certain. For anyone facing a charge that could go either way, that reality makes the difference between a misdemeanor plea and a felony conviction one of the most consequential decisions in the entire case.