Florida's primary firearm-while-intoxicated criminal statute is Fla. Stat. § 790.151, which prohibits "using" a firearm while under the influence of...
Reviewed by Will Luker, Founder of CCW Hub. USCCA Training Counselor, USCCA Certified Instructor, NRA Certified Instructor, Law Enforcement.
Florida's primary firearm-while-intoxicated criminal statute is Fla. Stat. § 790.151, which prohibits "using" a firearm while under the influence of alcohol or controlled substances when the carrier's "normal faculties are impaired." The word "use" is a defined term: under § 790.151(1)-(2), to "use a firearm" means to discharge a firearm or to have a firearm readily accessible for immediate discharge, and "readily accessible for immediate discharge" means loaded and in a person's hand. The statute targets discharge and loaded-in-hand conduct, not mere holstered concealed carry by a sober-eligible carrier who has had a drink. There is no Florida criminal statute that prohibits simply carrying a holstered, concealed firearm while intoxicated. The offense is a second-degree misdemeanor under § 790.151(4) - up to 60 days and a $500 fine.
Federal 18 U.S.C. § 922(g)(3) layers a separate prohibitor barring firearm possession by any "unlawful user of or addicted to any controlled substance." ATF treats marijuana use - including use under Florida's Compassionate Medical Cannabis Act, Fla. Stat. § 381.986 (implementing the 2016 medical-marijuana constitutional amendment) - as a § 922(g)(3) trigger because marijuana remains Schedule I federally. A Florida medical marijuana cardholder who possesses a firearm at home commits a federal felony even though no Florida criminal statute reaches that conduct.
Fla. Stat. § 790.157 establishes BAC presumptions. Note carefully: § 790.157(2) uses the 0.10 percent threshold, not the 0.08 vehicle-DUI threshold. At 0.05 or less, the carrier is presumed not impaired; between 0.05 and 0.10, no presumption arises; at 0.10 percent or more, the BAC is prima facie evidence of impairment. The Legislature has not amended § 790.157 to mirror § 316.193's modern 0.08 vehicle-DUI threshold. Fla. Stat. § 790.153 governs chemical testing: breath for alcohol, urine for controlled substances, on probable cause, with refusal admissible.
A § 790.151 conviction or two or more § 316.193 DUI convictions within three years also feeds the CWFL chronic-alcohol disqualifier under Fla. Stat. § 790.06(2)(f).
Practical takeaway: do not draw, load-and-grip, or discharge a firearm while impaired. Do not buy or possess a firearm if you are a current marijuana user, including under Florida's medical cannabis program. The § 790.151(5) self-defense and defense-of-property exception preserves justified defensive use by an impaired carrier, but it is a narrow exception, not a license to drink and shoot.
§ 790.151(1) defines, for purposes of §§ 790.151-790.157, that "to 'use a firearm' means to discharge a firearm or to have a firearm readily accessible for immediate discharge." § 790.151(2) defines the second branch: "readily accessible for immediate discharge" means loaded and in a person's hand.
Holstered concealed carry is not "use" within § 790.151 - a constitutional carrier under § 790.013 or a CWFL holder under § 790.06 who keeps the handgun holstered has not committed the offense regardless of BAC. The moment the carrier draws the firearm and holds it loaded, the conduct moves into "use" - pulling it from the holster to inspect, clean, or brandish all qualify. The Legislature could have written a flat "carry while intoxicated" prohibition. It did not. § 790.151 reaches drunk handling and drunk shooting, not drunk concealed carry by a person who never draws.
§ 790.151(3) makes it unlawful for any person under the influence of alcoholic beverages, a § 877.111 chemical substance (inhalants), or a chapter 893 controlled substance, when affected to the extent normal faculties are impaired, to use a firearm. The disjunctive list reaches alcohol, inhalants, and any Schedule I-V controlled substance.
§ 790.157(2) supplies the BAC presumptions:
| BAC | Effect under § 790.157(2) |
|---|---|
| 0.05 percent or less | Presumed NOT under the influence to the extent normal faculties are impaired |
| More than 0.05, less than 0.10 percent | No presumption either way; admissible with other evidence |
| 0.10 percent or more | Prima facie evidence the person was under the influence to the extent normal faculties are impaired |
The 0.10 figure is the legacy pre-1991 Florida vehicle-DUI threshold. § 316.193(1)(b)-(c) was amended decades ago to lower the per-se vehicle-DUI threshold to 0.08, but § 790.157 was not lowered alongside it and as of January 1, 2025 still reads 0.10. The "no presumption" zone is not a safe harbor - a carrier at 0.07 BAC who fumbles a loaded handgun and slurs speech can still be convicted on the totality of evidence.
§ 790.151(4) grades the offense as a second-degree misdemeanor, punishable under § 775.082 (up to 60 days) and § 775.083 (up to $500) - the lowest misdemeanor grade in Florida. § 790.151(5) supplies the only carve-out: "This section does not apply to persons exercising lawful self-defense or defense of one's property." The exception is keyed to lawfulness and picks up Florida's full justification framework under § 776.012 (Stand Your Ground) and § 776.013 (home protection). An impaired homeowner whose defensive use is justified under § 776.012 or § 776.013 has not committed a § 790.151 offense even though all other elements are present. The instructor caveat: § 790.151(5) does not protect public-confrontation force that fails the underlying justification analysis.
§ 790.153 supplies the chemical-testing framework for § 790.151 enforcement, paralleling vehicle DUI testing under § 316.1932 (which § 790.153(1)(c) expressly incorporates in part). § 790.153(1)(a) requires any person who uses a firearm within the state to submit to a breath test for alcohol and a urine test for controlled substances when there is probable cause, or following lawful arrest for any offense allegedly committed while using a firearm under the influence.
§ 790.153(1)(a) expressly provides that refusal "shall be admissible into evidence in any criminal proceeding." Unlike the vehicle DUI implied-consent regime, § 790.153 carries no separate license suspension for refusal - but the refusal walks into the courtroom as consciousness-of-guilt evidence. § 790.153(1)(b) gives the defendant a reciprocal right to request testing if the officer does not. § 790.153(2) bars use of the test results in a separate chapter 893 possession prosecution. § 790.155 authorizes mandatory blood testing in cases involving death or serious bodily injury.
§ 790.06(2)(e) - Controlled Substance Disqualification. The applicant must not have been (1) found guilty of a chapter 893 controlled-substance crime (or similar law) within a 3-year window preceding the application; or (2) committed for controlled-substance abuse under chapter 397 (or former chapter 396 or similar laws). The first prong is time-limited; the second is a permanent commitment-based bar absent firearms-disability relief.
§ 790.06(2)(f) - Chronic Alcohol Disqualification. The applicant must not "chronically and habitually use alcoholic beverages or other substances to the extent that his or her normal faculties are impaired." The statute creates a rebuttable presumption of chronic and habitual use when any of the following is true:
A single § 790.151 conviction triggers the presumption - there is no minimum count for the firearm-impairment offense. The vehicle-DUI threshold is two convictions in three years; a first DUI does not, by itself, trigger it. § 790.06(2)(f) applies on renewal as well as initial application: a CWFL holder who picks up a § 790.151 conviction or a second DUI inside three years faces the presumption at renewal time even if the license was issued cleanly.
§ 790.06(2)(j) - Mental Institution Commitment. Disqualifies an applicant committed to a mental institution under chapter 394 or similar laws. A residential rehab admission proceeding under chapter 394 commitment authority can produce a (j) disqualification independently of the (f) chronic-alcohol presumption.
Independent of Florida's framework, 18 U.S.C. § 922(g)(3) makes it unlawful for any person who is "an unlawful user of or addicted to any controlled substance" to ship, transport, possess, or receive any firearm or ammunition in or affecting interstate commerce. The offense is a federal felony with up to 10 years in prison and up to $250,000 in fines. ATF defines the term at 27 CFR § 478.11, reaching any current user of a controlled substance taken other than as prescribed by a licensed physician. Marijuana is the leading trigger because marijuana remains Schedule I federally regardless of state law.
Florida voters approved a constitutional amendment in 2016 (Amendment 2), authorizing medical use of marijuana for qualifying conditions. The implementing statute, Fla. Stat. § 381.986, governs qualified patients, caregivers, medical marijuana treatment centers, and the Office of Medical Marijuana Use within the Department of Health. A Florida medical marijuana cardholder is, under federal law, an unlawful user of a controlled substance - the state-law authorization does not change the federal classification.
ATF Form 4473 asks every purchaser, under penalty of perjury, to certify that they are not an unlawful user of any controlled substance, and the form expressly notes that marijuana use disqualifies regardless of state law. A Florida medical marijuana patient who answers "no" on Form 4473 commits a federal felony under 18 U.S.C. § 922(a)(6) (false statement) and § 922(g)(3) (possession by prohibited person). The exposure attaches even when the patient is sober at purchase and the firearm is kept entirely at home. A Florida resident who is a current marijuana user and possesses a holstered handgun at home commits no Florida § 790.151 offense (the statute requires "use" plus impairment), but commits a federal felony the moment firearm possession and ongoing use coexist. § 922(g)(3) also reaches recreational use of any Schedule I-V controlled substance taken outside a valid prescription.
§ 316.193 is the separate vehicle-DUI statute. § 316.193(1) reaches anyone driving, operating, or in actual physical control of a vehicle who is (a) under the influence of alcohol, a § 877.111 chemical substance, or a chapter 893 controlled substance to the extent normal faculties are impaired; or (b)-(c) at a blood- or breath-alcohol level of 0.08 or more. First-conviction grade is up to 6 months and a $500-$1,000 fine; § 316.193(4) escalates for 0.15+ BAC or a passenger under 18; a third conviction within 10 years is a third-degree felony under § 316.193(2)(b).
§ 316.193 does not itself create a firearm offense for an impaired driver with a holstered handgun in the vehicle. The vehicle-DUI consequences for firearm rights run through § 790.06(2)(f) - two convictions within three years trigger the chronic-alcohol presumption.
The trap at the DUI stop is § 790.151 itself. A driver who reaches into the glovebox and pulls out the loaded handgun during a DUI investigation - even to clear the firearm, even to surrender it - has moved from "carry" to "use" within § 790.151's narrow definition. Florida has no statutory duty to inform, but the safe practice is hands visible on the wheel, verbal disclosure if the encounter calls for it, and let the officer direct the handling.
Florida's use-of-force chapter - § 776.012 (defense of person; Stand Your Ground), § 776.013 (home protection; presumption of reasonable fear), and § 776.031 (defense of property) - does not categorically bar an impaired person from claiming self-defense. The § 790.151(5) carve-out is keyed to lawfulness: if the defensive use is justified under § 776.012, § 776.013, or § 776.031, the impaired carrier has a complete defense to the § 790.151 charge. If the defensive use fails on its own terms - provocation, lack of imminence, disproportionate force - § 790.151(5) does not save the carrier.
The home-protection presumption under § 776.013(2) operates in favor of the impaired homeowner: drinking at home is not "criminal activity" in Florida, so the impaired homeowner retains the presumption of reasonable fear when defending against an unlawful intruder. Stand Your Ground under § 776.012(2) is available to the impaired carrier in public on its own terms. But if the impaired carrier draws the firearm before the threat materializes - moving from "carry" to "use" within § 790.151 - the carrier has stepped into a separate offense, and § 776.012(2)'s "not engaged in criminal activity" element becomes contested. Teaching point: do not draw until the use of deadly force is actually justified.
1. Do not draw, hold loaded-in-hand, or discharge a firearm while impaired. § 790.151 targets "use," not carry. The bright rule is: if you have been drinking, do not pull the firearm out of the holster until lawful self-defense actually requires it. Drawing to show a friend, clearing a malfunction, or laying the firearm on a table moves the carrier from "carry" to "use."
2. There is no Florida criminal offense for sober-eligible holstered concealed carry while drinking. This is genuinely different from many states. (Federal law applies separately if the carrier is a current marijuana user.) Do not teach a Florida "carry-while-drinking" prohibition that does not exist.
3. § 790.157 presumptions are at 0.05 and 0.10, not 0.08. The vehicle-DUI 0.08 threshold under § 316.193(1)(b)-(c) is a separate statute. Teach the firearm thresholds correctly.
4. A § 790.151 conviction or two § 316.193 DUI convictions in three years trigger the § 790.06(2)(f) chronic-alcohol presumption and disqualify the applicant from CWFL eligibility on initial application and on renewal.
5. Florida medical marijuana cardholders should not possess firearms. Federal § 922(g)(3) reaches every cardholder regardless of compliance with § 381.986. The federal felony exposure attaches at home, and the Form 4473 trap is independent of state law.
6. The § 790.151(5) self-defense exception protects justified defensive use, not impaired aggressive use. An impaired homeowner defending against a forcible-and-unlawful intruder retains the § 776.013(2) home-protection presumption and the (5) carve-out. An impaired carrier who escalates and draws first does not.
7. Refusal to submit to § 790.153 testing is admissible as consciousness-of-guilt evidence. Unlike vehicle DUI, there is no parallel license suspension for refusal.
8. Plan the night. If a student plans to drink in public, the firearm should be locked at home or lawfully secured before drinking begins. Outside the dwelling: do not draw, do not discharge, do not handle loaded-in-hand.
| Provision | Subject |
|---|---|
| Fla. Stat. § 790.151(1)-(2) | Defines "use a firearm" - discharge or "readily accessible for immediate discharge" (loaded and in a person's hand) |
| Fla. Stat. § 790.151(3) | Prohibition on use of firearm under the influence when normal faculties are impaired |
| Fla. Stat. § 790.151(4) | Second-degree misdemeanor - § 775.082 (60 days), § 775.083 ($500) |
| Fla. Stat. § 790.151(5) | Self-defense and defense-of-property exception |
| Fla. Stat. § 790.153 | Chemical-test framework - breath/urine on probable cause; refusal admissible; defendant-requested testing |
| Fla. Stat. § 790.155 | Mandatory blood test in cases involving death or serious bodily injury |
| Fla. Stat. § 790.157(2) | BAC presumptions - 0.05 (not impaired), 0.05-0.10 (no presumption), 0.10+ (prima facie evidence of impairment) |
| Fla. Stat. § 790.157(3)-(4) | FDLE-approved testing methodology; right to jury trial |
| Fla. Stat. § 790.06(2)(e) | CWFL eligibility - chapter 893 conviction within 3 years; chapter 397 commitment |
| Fla. Stat. § 790.06(2)(f) | CWFL chronic-alcohol disqualification - presumption from § 790.151 conviction, § 856.011(3) habitual offender, or two § 316.193 convictions in 3 years |
| Fla. Stat. § 790.06(2)(j) | CWFL eligibility - chapter 394 mental-institution commitment |
| Fla. Stat. § 790.10 | Improper exhibition of dangerous weapons or firearms |
| Fla. Stat. § 790.15 | Discharging firearm in public or on residential property |
| Fla. Stat. § 316.193 | Vehicle DUI - 0.08 BAC/BrAC thresholds, progressive penalties |
| Fla. Stat. § 316.1932(1)(f) | Implied-consent breath testing - incorporated into § 790.153 |
| Fla. Stat. § 381.986 | Florida Compassionate Medical Cannabis program - implementing statute for the 2016 voter amendment |
| Fla. Stat. § 776.012 / § 776.013 | Use of force in defense of person (Stand Your Ground) / home protection presumption |
| Fla. Stat. § 856.011(3) | Habitual public-drunkenness offender - feeds § 790.06(2)(f) presumption |
| Fla. Stat. § 877.111 | Inhalant intoxication offenses - cross-referenced into § 790.151 |
| Ch. 893 / Ch. 397, Fla. Stat. | Drug Abuse Prevention and Control Act / substance-abuse commitment |
| 2016 Amendment 2 | Voter-approved medical marijuana amendment to Florida Constitution |
| Fla. Stat. § 775.082 / § 775.083 | General misdemeanor imprisonment / fine grades |
| 18 U.S.C. § 922(g)(3) | Federal prohibitor for unlawful drug user or addict - up to 10 years federal prison |
| 18 U.S.C. § 922(a)(6) | Federal false statement on firearm transaction record (Form 4473) |
| 27 CFR § 478.11 | ATF definition of "unlawful user of or addicted to any controlled substance" |
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