Carrying a Loaded Firearm While Under the Influence in Massachusetts: G.L. c. 269, § 10H

A licensed gun owner stopped for drunk driving with a loaded pistol on their hip, or found intoxicated outside a bar with a loaded gun in a pocket, is charged with carrying a loaded firearm while under the influence under G.L. c. 269, § 10H. The charge is written for license holders. It is added to a charge of operating under the influence after a traffic stop. After a call to a house or a disturbance on the street, it is brought on its own. The gun is taken at the scene. The license usually follows within days.

If a defendant is convicted, the possible penalties are a fine of up to $5,000, up to two and one half years in a house of correction, or both. The charge is a misdemeanor. A continuance without a finding is available. A conviction bars the defendant from a license to carry and bars a firearm identification card for five years. It also makes the defendant a prohibited person under federal law, because the offense is punishable by more than two years.

This page explains what the Commonwealth must prove, what “under the influence” means for a person carrying a gun, the blood alcohol alternative added in 2024, and the differences from a drunk driving charge. It covers the penalties, the license, the record, and the defenses. Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and defends firearms and drunk driving charges in the Boston Municipal Court and the District Courts of Greater Boston.

The Statute

Section 10H applies to a person “having in effect a license to carry firearms issued under section 131 or 131F of chapter 140” who “carries on his person, or has under his control in a vehicle, a loaded firearm” while under the influence of intoxicating liquor, marijuana, narcotic drugs, depressants or stimulant substances, or the fumes of a toxic vapor.

Since October 2, 2024, the statute also applies to a license holder who carries a loaded firearm “while with a percentage, by weight, of alcohol in their blood of eight one-hundredths or greater.” St. 2024, c. 135, § 133 added those words. A firearm is a firearm as G.L. c. 140, § 121 defines it, which since October 2, 2024 includes a rifle or shotgun as well as a handgun.

The statute does not require a car. A clerk-magistrate denied a complaint because the defendant was on the back porch of an apartment building rather than in a vehicle. The Supreme Judicial Court held that the denial was wrong, because the statute punishes carrying a loaded firearm on the person anywhere. Cabrera v. Commonwealth, SJC-13645 (Mass. June 17, 2025). In Cabrera, the police answered a noise complaint and found a license holder on a porch, unsteady on his feet, holding a nearly empty liquor bottle, with a loaded pistol in his pocket.

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 one of the listed substances at the time. District Court Instruction 7.670 (rev. June 2022) states the elements in that form. A firearm is loaded when ammunition is in the gun or in a feeding device attached to it. G.L. c. 269, § 10(o).

The instruction treats the license as the reason the statute exists rather than as an element. It explains that the words “having in effect a license to carry” separate this crime from carrying a firearm without a license under § 10(a). On that reading, the Commonwealth is not required to prove that the defendant was licensed. A person without a license who carries a loaded gun while drunk is charged under § 10(a) and § 10(n), which the firm’s page on carrying a firearm without a license covers.

The instruction also states that the Commonwealth need not prove that the defendant knew the gun was loaded, because § 10H does not use the word “knowingly.” No appellate court has decided the point. For the loaded firearm enhancement under § 10(n), which also lacks the word, the Supreme Judicial Court held that the Commonwealth must prove the defendant knew the gun was loaded. Commonwealth v. Brown, 479 Mass. 600 (2018). Counsel requests a knowledge instruction and preserves the question.

Control in a vehicle means more than presence. The Commonwealth must prove that the defendant knew the gun was in the car and had both the ability and the intention to control it. Exclusive control is not required. A passenger next to a gun that belongs to the driver, or a license holder whose gun is locked in the trunk, has a defense on this element.

What Under the Influence Means When the Activity Is Carrying a Gun

The standard comes from the drunk driving cases, adapted to the activity. A person is under the influence when alcohol has reduced their ability to carry a loaded firearm safely by decreasing their alertness or judgment. The Commonwealth does not have to prove that the defendant handled the gun unsafely, only that their ability to do so safely was diminished. The Appeals Court adopted that reading in Commonwealth v. Veronneau, 90 Mass. App. Ct. 477, 479 (2016). “In a prosecution for FUI, the Commonwealth must prove beyond a reasonable doubt that the defendant’s consumption of alcohol diminished his ability to safely carry a loaded firearm on his person (or have one under his control in a vehicle).”

The two charges are decided separately. In Veronneau, a trooper stopped the defendant for speeding and swerving. He had glossy eyes and smelled of alcohol. A loaded Beretta with a round chambered was in his pants pocket. He failed two of three field sobriety tests, admitted three vodka tonics, and blew .07 about an hour after the stop. The judge acquitted him of operating under the influence and convicted him of carrying while under the influence.

The Appeals Court affirmed. “Despite their use of common language, however, the statutes concern different instrumentalities and activities. For that reason, a trier of fact rationally may find that a particular individual was sufficiently impaired to be guilty of one offense but not the other.” Veronneau, 90 Mass. App. Ct. at 479-480. The evidence was sufficient. Veronneau, 90 Mass. App. Ct. at 481.

The standard is not unconstitutionally vague. Veronneau, 90 Mass. App. Ct. at 480 n.4. For marijuana and other drugs, the instruction asks the same question, 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 or that the person passed or failed a roadside assessment. Performance on the assessments is one fact the jury may weigh, and no assessment measures marijuana impairment the way a breath test measures alcohol. Commonwealth v. Gerhardt, 477 Mass. 775 (2017).

The Blood Alcohol Alternative After October 2, 2024

Before October 2, 2024, a breath test result was evidence of impairment but could not prove a § 10H charge by itself. The instruction still says so. The 2024 amendment added a second way to prove the charge, a blood alcohol percentage of .08 or greater while carrying the loaded gun. The instruction has not been revised for the amendment. No appellate court has applied it.

Proof of the number raises questions that the drunk driving statute answers and § 10H does not. The implied consent law, G.L. c. 90, § 24(1)(f), applies to a person arrested for operating under the influence.

The provision that makes a breath test admissible applies “in any prosecution for a violation of paragraph (a)” of the drunk driving statute. A breath test taken during a drunk driving arrest may be offered on the § 10H count only with the foundation the evidence rules require. A license holder who was not driving is under no obligation to take a test at all. Evidence that a person refused a breath test or a field sobriety test is inadmissible. Commonwealth v. McGrail, 419 Mass. 774, 778-780 (1995).

How § 10H Differs From a Drunk Driving Charge

Operating under the influence requires proof that the defendant operated a motor vehicle on a public way. Section 10H requires none of that. A license holder asleep in a parked car with a loaded gun in the console, a passenger with a pistol on their hip, and a person walking home from a bar can each be charged. The firm’s page on operating under the influence covers the drunk driving case. When both charges arise from one stop, the drunk driving case governs the license to drive, and § 10H governs the license to carry.

Section 10H also differs from improper storage. A loaded gun left in a car after a crash while the owner stands intoxicated outside it can support both charges, because the gun was neither secured nor under the owner’s control. The Appeals Court affirmed both convictions on those facts in a 2013 decision. 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 that charge.

Penalties and How the Case Proceeds

If a defendant is convicted under § 10H, the possible penalties are a fine of up to $5,000, imprisonment in a house of correction for up to two and one half years, or both. The offense is a misdemeanor. The District Court has jurisdiction. The statute contains no bar on a continuance without a finding, probation, or pretrial probation. The firm’s page on continuances without a finding and pretrial probation explains those dispositions.

A § 10H charge standing alone is not a predicate for a dangerousness hearing under G.L. c. 276, § 58A(1). A companion charge under § 10(a), (c), or (m), or a charge brought while a 209A order is in effect, is a predicate. Where the police apply for a complaint without an arrest, the person has the right to a clerk-magistrate hearing before the complaint issues. G.L. c. 218, § 35A.

A clerk-magistrate’s denial of the complaint does not end the matter. In Cabrera, the Commonwealth applied again three years later, and the complaint issued. The Supreme Judicial Court held that the first denial did not bar the second application and that the delay did not violate due process. The Commonwealth must bring the charge within six years. G.L. c. 277, § 63.

The License to Carry and the Guns

The license usually goes before the case does. Under G.L. c. 140, § 121F(u), the licensing authority may suspend or revoke a license on a determination of unsuitability. The statute defines unsuitability as reliable, articulable, and credible information that the person may create a risk to public safety or a risk of danger to themselves or others. A pending charge does not stay the suspension. A license holder arrested with a loaded gun while intoxicated should expect a suspension letter. The petition for review in the District Court must be filed within 90 days. The criminal case need not end first.

A conviction makes the person a prohibited person under G.L. c. 140, § 121F(j). The offense is a misdemeanor punishable by more than two years. It is also a violation of a law regarding the use or possession of firearms for which a term of imprisonment may be imposed. Either description bars a license to carry with no time limit and bars a firearm identification card for five years after the conviction or the release from confinement, probation, or parole.

Under G.L. c. 140, § 130B, a person convicted of an offense punishable by two and one half years or less may petition the Firearm Licensing Review Board for relief five years after the conviction. The petitioner must prove entitlement by clear and convincing evidence.

Federal law treats the conviction more harshly than a possession charge. The federal prohibition on possessing a firearm after a conviction, 18 U.S.C. § 922(g)(1), excludes a state misdemeanor punishable by two years or less, 18 U.S.C. § 921(a)(20)(B). Section 10H is punishable by two and one half years, so a conviction makes the defendant a federally prohibited person. The Appeals Court applied the same rule to a drunk driving conviction in a 2025 decision. Commonwealth v. Erler, No. 24-P-983 (Mass. App. Ct. Oct. 10, 2025). A continuance without a finding is not a conviction under G.L. c. 140, § 121, but the licensing authority may still find the person unsuitable based on the incident.

The gun surrendered at the scene is returned or transferred under G.L. c. 140, § 129D. A person whose license is revoked has one year to transfer the guns to a licensed dealer or a licensed person, and guns not transferred are sold at auction. A probation condition requiring the defendant to surrender all firearms and the license for the term of probation was upheld as reasonable in 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. Counsel examines what the officers saw, how long after the arrest they saw it, whether the defendant’s coordination and speech were tested, and whether the gun was holstered, secured, or untouched. A person is under no obligation to perform field sobriety tests. A refusal is not evidence. McGrail, 419 Mass. at 779.

The blood alcohol number. For an offense after October 2, 2024, counsel examines how the Commonwealth proposes to prove a blood alcohol percentage. Where the test was taken under the drunk driving statute, its admissibility on the § 10H count, the timing of the test, and the calibration and certification of the machine are each contested.

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. Counsel holds the Commonwealth to proof of knowledge, ability, and intention.

Loaded. The Commonwealth must prove that ammunition was in the gun or in a magazine attached to it. Counsel argues that it must also prove the defendant knew so, as the Supreme Judicial Court requires under § 10(n).

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

Suppression. Where the stop, the exit order, the frisk, or the entry into the home was unlawful, the judge suppresses the gun and the observations that followed. The firm’s pages on traffic stops and exit orders and illegal searches and seizures cover the motions.

Statements. Questions about the gun at the scene are custodial in most of these cases, and answers given without warnings are suppressed unless the public safety exception applies. The firm’s page on the right to remain silent explains the rule.

Immigration and the Record After a Conviction

Federal immigration law imposes its own consequences on a § 10H case. The deportability ground for firearms offenses covers a conviction “under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying” a firearm. 8 U.S.C. § 1227(a)(2)(C). No court has decided whether a § 10H conviction falls within that ground. The answer depends on how the Massachusetts definition of a firearm compares with the federal one.

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. The same review applies before the client files a petition or sits for an interview at which an officer may ask about the arrest. The firm’s immigration consequences pages describe the review.

The arraignment creates an entry in the defendant’s criminal record. A conviction under § 10H can be sealed under G.L. c. 276, § 100A three years after the disposition and any period of incarceration, with no new conviction in that time. A dismissal after a continuance without a finding can be sealed sooner under § 100C. Sealing does not restore the license. The prohibited person rule asks whether the person was convicted, not whether the record is visible.

Attorney Serpa’s Representation in § 10H Cases

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He defends § 10H charges in the Boston Municipal Court and the District Courts of Greater Boston, most often alongside a drunk driving charge after a traffic stop. In every case he reviews the stop, the observations of impairment and the time they were made, any breath test and its foundation, where the gun was and whether it was loaded, and the licensing letters that follow the arrest. He then advises 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