Carrying a Loaded Gun During an OUI Stop or While Drunk in Massachusetts Under G.L. c. 269, § 10H

A licensed gun owner who is stopped for OUI, or drunk driving, while in possession of a loaded gun usually faces two criminal charges, OUI and carrying a loaded firearm while under the influence. The OUI statute, G.L. c. 90, § 24(1)(a)(1), prohibits anyone from operating a motor vehicle on a public way, or in a place where the public has access, while under the influence of alcohol or drugs. The firearm statute, G.L. c. 269, § 10H, prohibits a person with a license to carry from having a loaded gun on their person, or under their control in a vehicle, while under the influence of alcohol or drugs.

The police take the gun at the scene. Within a few days, the local police chief usually suspends the person’s license to carry.

The police can add a third charge under G.L. c. 140, § 131C(a) when the loaded gun in the car is not under the driver’s direct control. A person convicted under § 131C(a) must pay a $500 fine. The local police chief must then revoke the person’s license to carry immediately. The police chief cannot issue the person a new license until one year after the revocation.

The Statute

Section 10H makes it a crime for a person who holds a license to carry to carry a loaded firearm, or to have a loaded firearm under their control in a vehicle, while under the influence of a listed substance. The substances listed in § 10H are alcohol, marijuana, narcotic drugs, depressants, stimulants, and the fumes of a toxic vapor. The statute applies to a person “having in effect a license to carry firearms issued under section 131 or 131F of chapter 140.”

Since October 2, 2024, the statute also applies to a license holder who carries a loaded firearm with a blood alcohol percentage of .08 or greater. The statute’s words are “while with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater.” The Legislature added the .08 language to § 10H in St. 2024, c. 135, § 133. Section 10H uses the definition of a firearm in G.L. c. 140, § 121. Since October 2, 2024, the § 121 definition includes a rifle or shotgun as well as a handgun.

A person can be charged under § 10H without being in a car. In Cabrera v. Commonwealth, SJC-13645 (Mass. June 17, 2025), the police answered a noise complaint and found a license holder on the back porch of an apartment building. The license holder was unsteady on his feet, held a nearly empty liquor bottle, and had a loaded pistol in his pocket. A clerk-magistrate refused to issue a complaint because the license holder was on a porch and not in a vehicle. The Supreme Judicial Court held that the clerk-magistrate was wrong, because the statute punishes carrying a loaded firearm on the person anywhere.

The Elements

To convict a defendant under § 10H, the Commonwealth must prove three elements beyond a reasonable doubt. First, the defendant carried a firearm on their person or had a firearm under their control in a vehicle. Second, the firearm was loaded. Third, the defendant was under the influence of alcohol or another substance listed in § 10H at the time.

The District Court’s model jury instruction, Instruction 7.670 (rev. June 2022), lists the same three elements. A firearm is loaded when ammunition is in the gun or in a magazine or other feeding device attached to the gun. G.L. c. 269, § 10(o).

Under the model jury instruction, the Commonwealth does not have to prove that the defendant held a license to carry. The instruction explains that the words “having in effect a license to carry” limit § 10H to license holders. For a person without a license who carries a loaded gun while drunk, the police charge the person under § 10(a) and § 10(n) instead of § 10H. The firm’s page on carrying a firearm without a license covers the § 10(a) and § 10(n) charges.

The model instruction also says that the Commonwealth does not have to prove that the defendant knew the gun was loaded, because § 10H does not use the word “knowingly.” No appellate court has decided whether the Commonwealth must prove under § 10H that the defendant knew the gun was loaded. Section 10(n), which provides an additional penalty for carrying a loaded firearm without a license, also does not use the word “knowingly.” Even so, the Supreme Judicial Court held that under § 10(n) the Commonwealth must prove that the defendant knew the gun was loaded. Commonwealth v. Brown, 479 Mass. 600 (2018).

In a § 10H case, defense counsel asks the judge to instruct the jury that the Commonwealth must prove that the defendant knew the gun was loaded. Defense counsel objects if the judge refuses to give the instruction, so that the defendant can argue on appeal that § 10H requires proof that the defendant knew the gun was loaded.

For a gun in a vehicle, the Commonwealth must prove that the defendant knew the gun was in the car and had both the ability and the intention to control the gun. The Commonwealth does not have to prove that the defendant was the only person with control of the gun. A passenger sitting next to a gun that belongs to the driver can argue that the gun was not under the passenger’s control. A license holder whose gun was locked in the trunk can argue that the gun was not under the license holder’s control.

What “Under the Influence” Means for a Person Carrying a Gun

A person is under the influence when alcohol has reduced, to any degree, their ability to carry a loaded firearm safely. The Commonwealth does not have to prove that the defendant handled the gun unsafely. The Appeals Court took the “under the influence” standard from the drunk driving cases. Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (2016).

A judge or jury can find a defendant not guilty of drunk driving and still find the defendant guilty under § 10H. In Veronneau, a trooper stopped the defendant for speeding and swerving. The defendant had glossy eyes and smelled of alcohol. A loaded Beretta with a round in the chamber was in the defendant’s pants pocket. The defendant failed two of three field sobriety tests and admitted drinking three vodka tonics. The defendant’s breath test final analysis, taken about an hour after the stop, was .07. The judge found the defendant not guilty of operating under the influence and guilty of carrying a loaded firearm while under the influence.

The Appeals Court upheld the § 10H conviction. The court explained that the two statutes use the same words but concern different activities, driving a car and carrying a gun. A judge or jury may therefore find that alcohol reduced a person’s ability to carry a gun safely without finding that alcohol reduced the person’s ability to drive safely. Veronneau, 90 Mass. App. Ct. at 479-480.

The court also held that the evidence was sufficient to support the § 10H conviction. Veronneau, 90 Mass. App. Ct. at 481. The court rejected the argument that the “under the influence” standard is too vague to be constitutional. Veronneau, 90 Mass. App. Ct. at 480 n.4.

For marijuana and other drugs, the jury decides whether the substance reduced the defendant’s ability to carry the gun safely. A police officer may not testify that a person was high on marijuana. An officer also may not testify that the person passed or failed a roadside assessment. The jury may consider how the person performed on the roadside assessments. No roadside assessment measures marijuana impairment the way a breath test measures alcohol. Commonwealth v. Gerhardt, 477 Mass. 775 (2017).

Proof by a Blood Alcohol Percentage of .08 or Greater

Before October 2, 2024, the Commonwealth could use a breath test final analysis as evidence of impairment. The Commonwealth could not prove a § 10H charge with the breath test final analysis alone. The model jury instruction still states the rule that applied before October 2, 2024. The 2024 amendment gives the Commonwealth a second way to prove the charge.

For an offense on or after October 2, 2024, the Commonwealth can prove that the defendant had a blood alcohol percentage of .08 or greater while carrying the loaded gun. The District Court has not revised the model instruction to include the amendment. No appellate court has applied the amendment.

The drunk driving statute contains rules about breath tests. The breath test rules in the drunk driving statute do not apply to a § 10H charge. Under the implied consent law, G.L. c. 90, § 24(1)(f), the Registry of Motor Vehicles suspends the driver’s license of a driver who is arrested for operating under the influence and refuses a breath test. The implied consent law applies only to a person arrested for operating under the influence.

The drunk driving statute provides that a breath test final analysis is admissible “in any prosecution for a violation of paragraph (a)” of the drunk driving statute. Paragraph (a) is the drunk driving offense. To use a breath test final analysis from a drunk driving arrest on a § 10H charge, the Commonwealth must satisfy the ordinary rules of evidence for admitting the breath test final analysis.

A license holder who was not driving does not have to take a breath test. The Commonwealth may not offer evidence that a person refused a breath test or a field sobriety test. Commonwealth v. McGrail, 419 Mass. 774, 778-780 (1995).

How § 10H Differs From an OUI or Drunk Driving Charge

To convict a defendant of operating under the influence, the Commonwealth must prove that the defendant operated a motor vehicle on a public way. Under § 10H, the Commonwealth does not have to prove that the defendant operated a motor vehicle or was on a public way. The police can bring a § 10H charge against a license holder asleep in a parked car with a loaded gun in the console. The police can also bring a § 10H charge against a passenger with a pistol on their hip, or against a license holder walking home from a bar with a loaded gun.

The firm’s page on operating under the influence explains the drunk driving charge. The court and the Registry of Motor Vehicles can suspend a person’s driver’s license because of a drunk driving charge that the police bring together with a § 10H charge after one stop. The court and the Registry of Motor Vehicles cannot suspend the driver’s license because of the § 10H charge. A person convicted on the drunk driving charge or on the § 10H charge cannot hold a license to carry.

A defendant can be convicted of both a § 10H charge and an improper storage charge for the same gun. In a case that the Appeals Court decided in 2013, the police found a handgun in a holster on the ground next to the driver’s door of a crashed truck. The defendant smelled strongly of alcohol.

The jury convicted the defendant of the § 10H charge and the improper storage charge. The Appeals Court held that the jury could find both that the defendant possessed the gun while intoxicated and that the defendant stored the gun improperly. There was no evidence that the gun had been in a locked box or container. Commonwealth v. Richardi, No. 12-P-769 (Mass. App. Ct. Apr. 10, 2013) (unpublished). The firm’s page on improper storage of a firearm explains the improper storage charge.

Penalties and How the Case Proceeds

A defendant convicted under § 10H can be punished by a fine of up to $5,000, up to two and one half years in a house of correction, or both. The offense is a misdemeanor. The case is heard in the District Court or the Boston Municipal Court. A judge may continue the case without a finding, place the defendant on probation, or order pretrial probation. The firm’s page on continuances without a finding and pretrial probation explains how a continuance without a finding and pretrial probation work.

The Commonwealth cannot ask a judge to hold a defendant without bail as dangerous, under G.L. c. 276, § 58A(1), on a § 10H charge alone. The Commonwealth can ask for detention without bail if the defendant is also charged under § 10(a), (c), or (m). The Commonwealth can also ask for detention without bail if the offense happened while a 209A restraining order (abuse prevention order) was in effect against the defendant. The Commonwealth can likewise ask for detention without bail if the § 10H charge involves abuse as defined in G.L. c. 209A, § 1.

A person has a right to a clerk-magistrate hearing before the clerk-magistrate decides whether to issue a complaint, if the police apply for the complaint without arresting the person. The clerk-magistrate may issue the complaint without a hearing if there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the Commonwealth by the person. G.L. c. 218, § 35A.

The Commonwealth can apply for a complaint again after a clerk-magistrate refuses to issue the complaint. In Cabrera, the Commonwealth applied again almost two and one half years after the first clerk-magistrate refused to issue the complaint. On the second application, a different clerk-magistrate issued the complaint. The Supreme Judicial Court held that the first clerk-magistrate’s refusal did not prevent the Commonwealth from applying again. The Supreme Judicial Court also held that the delay did not violate the defendant’s right to due process. The Commonwealth must bring a § 10H charge within six years. G.L. c. 277, § 63.

The License to Carry and the Guns

In most § 10H cases, the local police chief suspends the license to carry before the court decides the criminal case. The police chief is the licensing authority for most license holders. Under G.L. c. 140, § 121F(u), the licensing authority may suspend or revoke a license if the authority finds that the license holder is unsuitable. Under the statute, a license holder is unsuitable if the licensing authority has reliable, articulable, and credible information that the license holder may create a risk to public safety or a risk of danger to themselves or others.

The police chief does not have to wait for the criminal case to end before suspending the license. A license holder arrested with a loaded gun while intoxicated should expect a suspension letter from the police chief. A license holder who wants to challenge the suspension must file a petition for review in the District Court within 90 days after receiving notice of the suspension. G.L. c. 140, § 121F(v).

Under G.L. c. 140, § 121F(j), a person convicted under § 10H cannot hold a license to carry, for two reasons. The § 10H offense is a misdemeanor punishable by more than two years. The § 10H offense is also a violation of a firearms law that can be punished by imprisonment.

The ban on holding a license to carry has no time limit. A person convicted under § 10H also cannot hold a firearm identification card for five years after the conviction or after release from confinement, probation, or parole, whichever is later. A continuance without a finding is not a conviction under the licensing statute, G.L. c. 140, § 121. Even after a continuance without a finding, the police chief may find that the person is unsuitable because of what the person did.

Under G.L. c. 140, § 130B, a person convicted of an offense punishable by two and one half years or less may ask the Firearm Licensing Review Board to restore the person’s right to possess a firearm. The person may file the petition five years after the conviction or after release from confinement, probation, or parole, whichever is later. The person must prove to the Board, by clear and convincing evidence, that the person is suitable to hold a license.

Under federal law, a person convicted under § 10H cannot possess any firearm or ammunition. The federal ban in 18 U.S.C. § 922(g)(1) does not apply to a state misdemeanor punishable by two years or less. 18 U.S.C. § 921(a)(20)(B).

A § 10H conviction is punishable by two and one half years, so the federal ban applies to a person convicted under § 10H. In a 2025 decision, the Appeals Court applied the same federal rule to a drunk driving conviction, which is also punishable by two and one half years. Commonwealth v. Erler, No. 24-P-983 (Mass. App. Ct. Oct. 10, 2025).

G.L. c. 140, § 129D governs what happens to the gun that the police took at the scene. A person whose license is revoked has one year to transfer the guns to a licensed dealer or another licensed person. Guns that the person does not transfer within the one-year period are sold at auction. The Appeals Court upheld as reasonable a probation condition that required the defendant to surrender all firearms and the license to carry for the term of probation. Veronneau, 90 Mass. App. Ct. at 481-482.

Defenses

Under the influence. The Commonwealth must prove that alcohol or a drug reduced the defendant’s ability to carry the gun safely. Defense counsel examines what the officers observed and when, whether the officers tested the defendant’s coordination and speech, and whether the gun was holstered, secured, or untouched. A person does not have to perform field sobriety tests. The Commonwealth may not use a refusal as evidence. McGrail, 419 Mass. at 779.

The blood alcohol percentage. For an offense on or after October 2, 2024, defense counsel examines how the Commonwealth intends to prove the defendant’s blood alcohol percentage. For a breath test that the police gave under the drunk driving statute, counsel challenges whether the breath test final analysis is admissible on the § 10H charge. Counsel also challenges when the test was given and whether the machine was calibrated and certified.

Carrying or control. A gun in a locked trunk, in a case in the back seat, or in another person’s possession was not carried on the defendant’s person, and may not have been under the defendant’s control. Defense counsel insists that the Commonwealth prove that the defendant knew the gun was there and had both the ability and the intention to control the gun.

Loaded. The Commonwealth must prove that ammunition was in the gun or in a magazine attached to the gun. Defense counsel argues that the Commonwealth must also prove that the defendant knew the gun was loaded. Under § 10(n), the Supreme Judicial Court requires proof that the defendant knew the gun was loaded.

Marijuana. No officer may give an opinion that the defendant was high. No roadside test measures marijuana impairment. The Commonwealth must prove, through what the defendant did and said, that marijuana reduced the defendant’s ability to carry the gun safely. The firm’s page on marijuana and drug OUI defense explains the rules.

Suppression. The judge suppresses the gun if the stop, the exit order, the frisk, or the entry into the home was unlawful. The Commonwealth cannot use the gun as evidence after the judge suppresses the gun. The judge also suppresses what the officers observed after the unlawful act. The firm’s pages on traffic stops and exit orders, and on illegal searches and seizures, explain the motion to suppress.

Statements. In most § 10H cases, the person is in custody when the officers ask about the gun at the scene. The judge suppresses the person’s answers if the officers did not first give Miranda warnings, unless the officers asked the questions to protect people from an immediate danger. The firm’s page on the right to remain silent explains the Miranda rule.

Immigration and the Record After a Conviction

Federal immigration law imposes its own consequences on a § 10H case. Under 8 U.S.C. § 1227(a)(2)(C), a noncitizen convicted “under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying” a firearm is deportable. No court has decided whether a § 10H conviction makes a noncitizen deportable under § 1227(a)(2)(C). The question whether a § 10H conviction makes a noncitizen deportable depends on how the Massachusetts definition of a firearm compares with the federal definition.

A noncitizen should not admit to the charge or accept a continuance without a finding until an immigration lawyer has reviewed the charge, the client’s immigration status, and the court record. At an interview, an immigration officer may ask about the arrest for carrying a loaded firearm while under the influence. The immigration lawyer should also review the exact question about the arrest that the client must answer, before the client files a petition or sits for an interview. The firm’s immigration consequences pages explain how an immigration lawyer reviews a criminal case.

After arraignment, the charge appears on the defendant’s criminal record. The Commissioner of Probation can seal a § 10H conviction under G.L. c. 276, § 100A, three years after the case ends and after any time in custody, if the person has no new conviction during the three-year waiting period. A judge can seal a dismissal after a continuance without a finding under § 100C, with no waiting period. A person convicted under § 10H still cannot hold a license to carry after the Commissioner of Probation seals the record of the conviction.

Attorney Serpa’s Representation in § 10H Cases

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Attorney Serpa defends § 10H charges in the Boston Municipal Court and the District Courts of Greater Boston, most often together with a drunk driving charge after a traffic stop. In every § 10H case, Attorney Serpa reviews the stop, the officers’ observations of impairment, and when the officers made each observation.

Attorney Serpa also reviews any breath test and the evidence needed to admit the breath test final analysis, where the gun was, whether the gun was loaded, and the police chief’s letters after the arrest. Attorney Serpa then advises the client on a motion to suppress, a trial, or a continuance without a finding, and on the petition for review of the license suspension.

Frequently Asked Questions About Carrying a Firearm While Under the Influence

Related Serpa Law Office Resources

• Massachusetts Criminal Defense of Firearms Offenses
• Carrying a Firearm Without a License in Massachusetts: G.L. c. 269, § 10(a)
• Improper Storage of a Firearm in Massachusetts: G.L. c. 140, § 131L
• Possession of a Large Capacity Firearm or Feeding Device in Massachusetts: G.L. c. 269, § 10(m)
• Untraceable Firearms, Ghost Guns, and Defaced Serial Numbers in Massachusetts: G.L. c. 269, § 11C
• OUI and DUI Defense in Greater Boston
• Marijuana and Drug OUI Defense in Massachusetts
• Field Sobriety Test Defense in Massachusetts
• Massachusetts Traffic Stops, Exit Orders, and Pretext Searches
• Illegal Searches and Seizures in Massachusetts
• The Right to Remain Silent in Massachusetts
• Massachusetts Clerk-Magistrate (Show Cause) Hearings
• Continuances Without a Finding, Pretrial Probation, and Diversion
• Who Can See Your Massachusetts Criminal Record
• Sealing and Expunging a Massachusetts Criminal Record
• Criminal Records and the Massachusetts Firearms License Application
• Immigration Consequences of Massachusetts Criminal Charges