NRS § 202.257 makes it a Nevada misdemeanor to carry or hold a gun while drunk or high or with a blood alcohol concentration (BAC) of at least 0.08%. This crime is called “possessing a firearm while under the influence.”
Elements
In Nevada, physically possessing a firearm becomes a crime if you currently:
- are under the influence of drugs or alcohol or
- have a BAC of 0.08% or higher.
The one exception to this rule occurs when you are at home and are carrying the gun for self-defense.
Following your arrest, you must submit to a breath test or blood test. If you refuse, the police can get a warrant for a forced blood draw.
Penalties
As a misdemeanor in Nevada, possessing a firearm under the influence carries:
- Jail: Up to 6 months and/or
- Fines: Up to $1,000.
You also may have to forfeit the gun if you handled it in a way that endangered others.
Defenses
You can fight NRS 202.257 charges by arguing that:
- You were not impaired, and your BAC was below 0.08%,
- You were not in physical possession of the firearm,
- You were at home and carrying the gun for self-defense, or
- The police lacked probable cause to make an arrest.
In our experience, many “possessing a firearm while under the influence” charges turn on facts that are less straightforward than they initially appear, such as where the gun was located, whether the defendant actually had physical control over it, how the police determined the defendant was impaired, and whether breath or blood testing was reliable. When we defend these cases, we closely examine all these questions in pursuit of favorable evidence for our clients.
In this article, our Las Vegas criminal defense attorneys discuss the following topics regarding drunk or drugged firearm possession:
- 1. Elements of NRS 202.257
- 2. Breath or Blood Test
- 3. Penalties
- 4. Will I lose my gun?
- 5. Defenses
- 6. Record Seals
- Frequently Asked Questions
- Additional Reading
- Additional Resources
1. Elements of NRS 202.257
For you to be convicted in Nevada of possessing a gun while under the influence, prosecutors must prove beyond a reasonable doubt the following two elements of the jury instructions:
- You had a firearm in your actual physical possession (such as carrying or holding the gun); and
- One of the following is true:
- You had a blood alcohol content (BAC) of 0.08% or higher, or
- You were impaired because you ingested, inhaled, applied, or otherwise used too much alcohol, controlled substances, prescription drugs, over-the-counter drugs, or another substance to operate a gun responsibly.1
Therefore, you can be convicted even if you have a low BAC as long as you are impaired by alcohol or drugs. Conversely, you can be convicted even if you are unimpaired as long as your BAC is 0.08% or higher.
Example: Jim, Jack, and John are camping out near Red Rock. Jim never drinks, but after dinner he has a beer. Jack is a seasoned drinker and downs several beers. Meanwhile, John develops a migraine and takes four Motrin. Then they go target shooting.
Jim’s BAC is likely legal because he had only one beer, but he could still be convicted of possessing a gun if that one beer impairs him. Jack’s BAC is certainly illegal, so he can be convicted of possessing a gun even if he is unimpaired due to his high alcohol tolerance. John’s BAC is zero, but he could also be convicted of possessing a gun if the painkillers impair him.
NRS 202.257 is the reason why we advise people to leave their firearms at home when they know they will be out drinking. Even if you can “hold your liquor” and feel sober, police will likely arrest you if they smell alcohol on your breath while you are carrying a gun.
2. Breath or Blood Test
If you are arrested for “carrying under the influence” in Nevada, the police will give you the choice to take a breath test or blood test. Though if the police suspect drug use, you must take the blood test since breath tests do not detect drugs.2
If you refuse the breath or blood test, police can get a warrant allowing them to use “reasonable force” to restrain you to draw blood.3 Therefore, it is usually not worth it to refuse getting tested.
3. Penalties
Being intoxicated or having an illegal BAC while carrying or handling a gun is a misdemeanor in Nevada. The sentence includes:
- Up to 6 months of county jail time and/or
- Up to $1,000 in fines.
You may also have to surrender your firearm if you brandished, aimed, or otherwise handled it in a manner that endangered others.4
Note that this crime is a misdemeanor whether or not it is your first offense or a successive offense. Unlike with DUI, drunk/drugged firearm possession does not carry harsher punishments with each conviction.
4. Will I lose my gun?
If you are convicted of possessing a firearm under the influence in Nevada, you may have to forfeit your gun if you either:
- Brandished the gun,
- Aimed the gun, or
- Otherwise handled the gun in a manner.
that endangered others or public health and safety.5
Therefore, your gun can be forfeited even if you never shoot it. Also, it does not matter whether it is an unloaded or loaded firearm.
Example: Tom and Tim leave the Green Valley Ranch inebriated. Tom keeps his hands in his pockets and never touches the gun in his holster. Meanwhile Tim keeps his gun in his hand while waving his arms to keep his balance.
If both Tom and Tim are convicted of violating NRS 202.257, odds are Tom gets to keep the gun because he never used it in a dangerous manner. However, since Tim kept hold of the gun while waving his hands and therefore risking a bullet hitting someone else, he may have to surrender the gun.
5. Defenses
Here at Las Vegas Defense Group – Criminal & DUI Attorneys, we have represented literally thousands of people charged with weapons crimes such as carrying a firearm under the influence of alcohol or drugs. In our experience, the following four defenses have proven very effective with prosecutors and judges.
- Your BAC was legal, and you were not impaired. Perhaps the breath- or blood-testing equipment the police used was defective. Or perhaps the person who operated the equipment was not licensed or failed to follow proper protocol. Or perhaps the police were mistaken about you being impaired. As long as the D.A. cannot prove beyond a reasonable doubt that you had a BAC of at least 0.08% or were too compromised to handle firearms, the charge should be dismissed.
- You were not in actual physical possession of the gun. NRS 202.257 only applies if you held, carried, or had a gun within your immediate control (such as in your car while driving). There was no “actual physical possession” if someone other than you had sole control of the gun or if the gun was in another room. If we can show that the gun in question was outside your actual physical possession, the case should be dropped.
- You were acting in self-defense in your home. Nevada law permits you to handle a gun for self-defense in your personal residence even if you are inebriated. Therefore, if we can show that you were facing a threat of immediate bodily harm and were using the gun as a reasonable form of self-defense in your home, the judge should throw out the case.
- The police lacked probable cause to arrest you. Police may not place you under arrest unless they had probable cause to believe you committed the crime in question. Merely being near alcohol or having a few sips of alcohol while carrying a gun generally is not sufficient evidence. If we can demonstrate that the arrest had an inadequate legal basis, the entire case could be dropped.
When we defend these cases, we typically start by scrutinizing the police reports, body-camera footage, test results, firearm location, witness accounts, and circumstances of the arrest to identify inconsistencies or weaknesses in the state’s case.
6. Record Seals
A Nevada conviction for carrying a gun under the influence may be sealed one year after the case ends. If the charge is dismissed, you can petition for a record seal immediately.6
We tell clients to pursue a record seal as soon as they are eligible. Having even one misdemeanor on your record may turn off potential employers, landlords, lenders, and professional licensing boards.
Learn how to seal criminal records in Nevada.
Frequently Asked Questions
Can I possess a gun in Nevada after drinking alcohol?
Nevada law does not automatically prohibit you from possessing a firearm simply because you consumed alcohol. NRS 202.257 prohibits actual physical possession when your blood or breath alcohol concentration is 0.08% or higher, or when alcohol, drugs, or other covered substances impair you to the point that you cannot safely exercise actual physical control over a firearm.
In cases we handle, we therefore look beyond whether our client had been drinking and examine the BAC evidence, signs of impairment, and what the person was actually doing with the firearm.
Can I be charged with possessing a firearm under the influence if my BAC is below 0.08%?
Yes. Nevada law allows an NRS 202.257 charge even when your BAC is below 0.08% if the state can prove that an intoxicating substance impaired your ability to safely exercise actual physical control over the firearm. This means a BAC below the legal limit does not necessarily end the case.
In our experience, these cases are highly fact-specific because the prosecution often has to rely on observations, statements, drug evidence, or other circumstances to establish impairment.
What does “actual physical possession” of a firearm mean in an NRS 202.257 case?
In Nevada, “actual physical possession of a firearm” means holding or carrying a firearm. It does not include keeping it stored in a drawer or in a safe.
In cases we handle, we examine exactly where the firearm was found, who had access to it, and what evidence allegedly connects our client to the gun.
Can I have a gun in my own home if I have been drinking?
NRS 202.257 contains a specific exception for a person who possesses a firearm inside their personal residence solely for self-defense. The exception is narrower than a general right to handle a firearm at home while intoxicated because the statute expressly requires possession to be for self-defense.
Do I have to take a breath or blood test after an arrest under NRS 202.257?
Yes. Nevada law requires a person to submit to an evidentiary test when requested by a police officer in connection with a suspected NRS 202.257 violation.
In cases we handle, we review not only the reported test result but also how the sample was obtained, whether required procedures were followed, and whether there are grounds to challenge the reliability or admissibility of the evidence.
What is the penalty for possessing a firearm while under the influence in Nevada?
Possessing a firearm while under the influence in violation of NRS 202.257 is a misdemeanor in Nevada, carrying up to six months in jail and/or up to $1,000 in fines. A firearm may also be subject to forfeiture if your handling of it endangered others.
As with most misdemeanors, it is often possible to get probation in lieu of incarceration in these types of cases.
Will I automatically lose my gun after an NRS 202.257 conviction?
No. A conviction under NRS 202.257 does not automatically require forfeiture of the firearm in every case. Nevada law provides for forfeiture when the firearm was brandished, aimed, or otherwise handled in a way that endangered others or public health and safety.
Can prescription medication lead to an NRS 202.257 charge?
Yes. A person can potentially violate NRS 202.257 based on impairment from substances other than alcohol, including drugs that leave the person incapable of safely exercising actual physical control over a firearm. Having a lawful prescription for the drug is not a defense.
When clients start new medication, we always advise them to first stow away any firearms in case they have an unexpected reaction.
Additional Reading
See our related firearm-related articles on:
- Background checks – What you need to reveal before buying a gun.
- Being a convicted felon in possession of a firearm – The penalties for having a gun if you are a felon.
- Concealed firearm laws – The rules for how and where you can conceal carry firearms.
- Domestic violence – Even a misdemeanor conviction strips you of gun rights.
- Gun possession on school property or a child care facility – The penalties for having firearms near children.
- Gun storage laws – What Nevada law requires to safely store firearms.
- How to get a CCW permit – A guide for getting a permit to conceal carry in Nevada.
- Machine gun laws – The rules for lawfully possessing an automatic weapon.
- Open carry laws – Guide to where you may openly carry guns in Nevada.
- Restraining order violations – The penalties for violating an extended restraining order by possessing a firearm.
Additional Resources
If you are struggling with alcoholism or substance abuse addiction, you can find help here:
- Alcoholics Anonymous (AA) – A 12-step program to overcome alcohol addiction.
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Services Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Centers of America – Treatment centers in seven states.
- SMART Recovery – Group therapy for young people struggling with addiction.
- Partnership to End Addiction – Information on how to find drug addiction treatment.
Legal References
- Nevada Revised Statute 202.257 – Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.
It is unlawful for a person who:
(a) Has a concentration of alcohol of 0.08 or more in his or her blood or breath; or
(b) Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him or her incapable of safely exercising actual physical control of a firearm,
–> to have in his or her actual physical possession any firearm.
This prohibition does not apply to the actual physical possession of a firearm by a person who was within the person’s personal residence and had the firearm in his or her possession solely for self-defense.
Note that the Nevada legislature reduced the BAC limit from 0.10% to 0.08% in AB 291 (2019). See also Morton v. State (Nev. App. 2022) 517 P.3d 244. - See also Byars v. State (Nev. 2014) 336 P.3d 939.
- NRS 202.257 (“Any evidentiary test to determine whether a person has violated the provisions of subsection 1 must be administered in the same manner as an evidentiary test that is administered pursuant to NRS 484C.160 to 484C.250, inclusive, except that submission to the evidentiary test is required of any person who is requested by a police officer to submit to the test. If a person to be tested fails to submit to a required test as requested by a police officer, the officer may apply for a warrant or court order directing that reasonable force be used to the extent necessary to obtain the samples of blood from the person to be tested, if the officer has reasonable cause to believe that the person to be tested was in violation of this section.“). Missouri v. McNeely (2003) 569 U.S. 141, 133 S. Ct. 1552.
- NRS 202.257.
- Same.
- NRS 179.245; NRS 179.255.
