Can a Tennessee enhanced handgun carry permit holder still be charged with the firearm-after-DUI offense if their DUI history doesn't disqualify them from the permit?

Subject

Whether an enhanced handgun carry permit holder whose DUI history does not disqualify them under § 39-17-1351(c)(11) can be charged or convicted under § 39-17-1307(h)(1)(B), the offense statute that prohibits carrying a firearm with intent to go armed following recent DUI convictions.

Plain-English summary

Representative Rusty Grills asked whether the firearm-after-DUI offense and the DUI disqualifier for the enhanced handgun carry permit really line up the way the text suggests, or whether someone could end up squeezed between them. The AG's answer: they line up. Same lookback windows. If the permit statute lets you have a permit, the offense statute does not reach you.

The two statutes use the same DUI thresholds. To be eligible for an enhanced handgun carry permit under § 39-17-1351(c)(11), an applicant must affirm under oath that she has not been convicted of DUI two or more times in the prior ten years, and that no DUI conviction has occurred within the prior five years. The offense statute, § 39-17-1307(h)(1)(B), criminalizes carrying a firearm with intent to go armed by a person convicted of DUI two or more times in the prior ten years or once within the prior five years. Identical numerical windows.

The result: if your DUI history is below those thresholds, you are eligible for the permit, and you do not commit the offense by carrying. If your DUI history exceeds the thresholds, you are disqualified from the permit, and you do commit the offense if you carry without an applicable defense.

The AG also points to § 39-17-1308(a)(2), which gives an explicit defense to § 39-17-1307: it is a defense if the carrying was "by a person authorized to possess or carry a firearm pursuant to § 39-17-1351." A valid enhanced permit holder is, by definition, authorized.

What this means for you

This opinion is statutory interpretation about the relationship between two provisions. It does not change anyone's eligibility or create new rules; it reads the existing statutes.

If you hold an enhanced handgun carry permit and are not disqualified under § 39-17-1351(c)(11)

The opinion concludes you do not commit an offense under § 39-17-1307(h)(1)(B) when you carry your handgun with the intent to go armed. The AG gives two reasons: the offense statute's DUI thresholds mirror the permit-eligibility thresholds, so a permit-eligible person falls outside the offense by its terms, and § 39-17-1308(a)(2) provides a defense for a person authorized to carry under § 39-17-1351.

If your DUI history exceeds the thresholds in § 39-17-1351(c)(11)

The opinion frames the offense and the disqualifier as parallel. A person with two or more DUI convictions within ten years, or one within five years, is not eligible for an enhanced permit, and the opinion describes that same person as falling within the § 39-17-1307(h)(1)(B) offense when carrying with intent to go armed. The opinion does not analyze defenses in that situation.

Common questions

Q: Can an enhanced permit holder be charged under § 39-17-1307(h)(1)(B) for a past DUI?
A: The opinion concludes that a person who holds an enhanced handgun carry permit and is not disqualified under § 39-17-1351(c)(11) does not commit an offense under § 39-17-1307(h)(1)(B) by carrying with intent to go armed. The opinion explains that the two statutes use mirroring DUI windows and that § 39-17-1308(a)(2) supplies a defense.

Q: How does the permit-eligibility DUI window work?
A: The opinion describes § 39-17-1351(c)(11) as disqualifying an applicant convicted of DUI two or more times within ten years of the application, no matter when within that ten-year period the convictions occurred, or who has any DUI conviction within five years of application or renewal. A single DUI more than five years old, with no other DUI in the ten-year window, does not disqualify under the opinion's reading.

Q: Does a DUI from another state count?
A: The statutes the opinion quotes refer to DUI convictions "in this or any other state."

Q: What does this opinion not address?
A: The opinion addresses only the relationship between § 39-17-1307(h)(1)(B), the permit-eligibility bar in § 39-17-1351(c)(11), and the defense in § 39-17-1308(a)(2). It does not analyze other firearm-possession offenses or other carry frameworks.

Background and statutory framework

Tennessee criminalizes carrying a firearm with intent to go armed under § 39-17-1307. Subsection (a) is the general offense; subsection (h) lists categories of persons specifically prohibited, including a person "convicted of the offense of driving under the influence of an intoxicant in this or any other state two (2) or more times within the prior ten (10) years or one (1) time within the prior five (5) years." § 39-17-1307(h)(1)(B).

The state separately authorizes enhanced handgun carry permits under § 39-17-1351. Eligibility requirements are listed in subsection (c), and (c)(11) bars an applicant who has been convicted of DUI "two (2) or more times within ten (10) years from the date of the application" or who has had any DUI conviction "within five (5) years from the date of application or renewal." The numbers in the offense statute and the permit-eligibility statute match by design.

Section 39-17-1308 then provides defenses to § 39-17-1307. Subsection (a)(2) makes it a defense that the possession or carrying was "by a person authorized to possess or carry a firearm pursuant to § 39-17-1351." The opinion identifies that defense as a further basis for its conclusion.

Citations

Statutes:

• Tenn. Code Ann. § 39-17-1307(h)(1)(B) (offense)
• Tenn. Code Ann. § 39-17-1308(a)(2) (defense for § 39-17-1351 permit holders)
• Tenn. Code Ann. § 39-17-1351(c)(11) (permit eligibility DUI bar)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2023/op23-04.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
February 28, 2023
Opinion No. 23-004

Enhanced Handgun Carry Permit Holder Carrying Handgun with Intent to Go Armed Following Conviction for Driving Under the Influence of an Intoxicant

Question

If a person is prohibited under Tenn. Code Ann. § 39-17-1307(h)(1)(B) from carrying a firearm with the intent to go armed as a result of one or more convictions for driving under the influence of an intoxicant but the person possesses an enhanced handgun carry permit and does not have a disqualification under Tenn. Code Ann. § 39-17-1351(c)(11), may that person be charged or convicted under Tenn. Code Ann. § 39-17-1307(h)(1)(B)?

Opinion

A person who possesses an enhanced handgun carry permit does not commit an offense under Tenn. Code Ann. § 39-17-1307(h)(1)(B) when that person carries his or her handgun with the intent to go armed, assuming that the person is not disqualified from holding an enhanced handgun carry permit under Tenn. Code Ann. § 39-17-1351(c)(11).

ANALYSIS

Tennessee Code Annotated § 39-17-1351 governs the issuance of enhanced handgun carry permits in this State. An enhanced handgun carry permit allows the permit holder to carry a handgun with the intent to go armed. To be eligible for an enhanced handgun carry permit, the applicant must, among other things, confirm, under oath

[t]hat the applicant has not been convicted of the offense of driving under the influence of an intoxicant in this or any other state two (2) or more times within ten (10) years from the date of the application and that none of the convictions has occurred within five (5) years from the date of application or renewal.

Tenn. Code Ann. § 39-17-1351(c)(11) (emphasis added).

Thus, under this provision, a person who has been convicted of the offense of driving under the influence of an intoxicant two or more times within ten years from the date of application for an enhanced handgun carry permit is not eligible for a permit—no matter when those convictions occurred within the ten-year period immediately preceding the date of application. But a person who has been convicted of the offense of driving under the influence of an intoxicant once within ten years from the date of the application remains eligible to obtain a permit as long as the conviction did not occur within the five-year period immediately preceding the date of application or renewal.

This particular eligibility requirement does not conflict with but rather parallels the statutory provision that makes it an offense for a person to carry a firearm with the intent to go armed if that person "[h]as been convicted of the offense of driving under the influence of an intoxicant in this or any other state two (2) or more times within the prior ten (10) years or one (1) time within the prior five (5) years." Id. § 39-17-1307(h)(1)(B) (emphasis added). In other words, carrying a firearm with the intent to go armed is an offense under § 39-17-1307(h)(1)(B) only if the person has been convicted for driving under the influence twice in the last ten years or once in the last five years, in which case that person would be ineligible for an enhanced handgun carry permit. Accordingly, a person who holds an enhanced handgun carry permit does not commit an offense under Tenn. Code Ann. § 39-17-1307(h)(1)(B) when that person carries his or her handgun with the intent to go armed, assuming that the person is not disqualified from holding an enhanced handgun carry permit under Tenn. Code Ann. § 39-17-1351(c)(11).

In short, the express terms of these two statutory provisions mirror one another and preclude an enhanced handgun carry permit holder who satisfies Tenn. Code Ann. § 39-17-1351(c)(11) from being prosecuted under Tenn. Code Ann. § 39-17-1307(h)(1)(B). Furthermore, the General Assembly has specifically provided that "[i]t is a defense to the application of § 39-17-1307 if the possession or carrying was . . . [b]y a person authorized to possess or carry a firearm pursuant to . . . § 39-17-1351 . . . ." Id. § 39-17-1308(a)(2).

JONATHAN SKRMETTI
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Rusty Grills
State Representative
425 Rep. John Lewis Way N.
Suite 650 Cordell Hull Building
Nashville, Tennessee 37243