San Francisco County Municipal Code Art. 36 Prohibiting the Carrying of a Firearm While Under the

INFLUENCE OF AN ALCOHOLIC BEVERAGE OR DRUG, OR POSSESSION OF A FIREARM WHILE UPON PUBLIC PREMISES SELLING OR SERVING ALCOHOLIC BEVERAGES Sec. 3600. Findings.

Sec. 3601. Definitions. Sec. 3602. Carrying of Firearms Prohibited while under the Influence of an Alcoholic Beverage or Drug. Sec. 3603. Possession of Firearms Prohibited while upon Public Premises Selling or Serving Alcoholic Beverages. Sec. 3604. Presumption Raised by Blood Alcohol Level. Sec. 3605. Chemical Blood, Breath, or Urine Tests; Obligation of Officer to Advise Regarding Legal Rights and Consequences; Confiscation of Firearm for Refusal to Submit to Test; Hearing. Sec. 3606. Administration of Tests. Sec. 3607. Authorized Use of Drugs. Sec. 3608. Participation in Treatment Program not Grounds for Suspending or Dismissing Proceedings. Sec. 3609. Penalty. Sec. 3610. Proscribed Firearms as Nuisance; Surrender and Destruction; Restoration of Stolen Firearms to Owner. Sec. 3611. Severability.

Editor's Note: See also the following Police Code provisions: · Art. 9, Secs. 613 et seq., Miscellaneous Conduct Regulations (relating to firearms and ammunition). · Art. 14, Secs. 840 et seq., Miscellaneous Regulations for Professions and Trades (relating to carrying firearms). · Art. 35, Firearm Strict Liability Act. · Art. 36A, Sale, Manufacture and Distribution of Firearms and Ammunition; Possession of Handguns. · Art. 36B, Storage of Firearms in Motor Vehicles. · Art. 45, Firearms and Weapons Violence Prevention Ordinance. SEC. 3600. FINDINGS. (a) Persons under the influence of an alcoholic beverage or drug frequently lack the normal restraint and judgment that would ordinarily prevent them from initiating or escalating criminal or domestic violence. (b) Carrying or possession of firearms by persons under the influence of an alcoholic beverage or drug exacerbates the problems associated with the irresponsible or unlawful use of such weapons. (c) It has been determined that in order to promote and to protect the health and safety and welfare of the public, it is necessary to regulate the carrying or possession of firearms by persons under the influence of an alcoholic beverage or drug. (Added by Ord. 399-82, App. 8/12/82) SEC. 3601. DEFINITIONS. Unless the provision or context otherwise requires, the following definitions shall govern the construction of this Article: (a) "Alcoholic beverage" includes any liquid or solid material intended to be ingested by a person which contains ethanol, also known as ethyl alcohol, drinking alcohol, or alcohol, including, but not limited to, alcoholic beverages as defined in Section 23004 of the California Business and Professions Code, intoxicating liquor, malt beverage, beer, wine, spirits, liqueur, whiskey, rum, vodka, cordials, gin, and brandy, and any mixture containing one or more alcoholic beverages. For purposes of this Article, alcoholic beverage includes a mixture of one or more alcoholic beverages ingested separately or as a mixture. (b) "Firearm"means (1) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (2) the frame or receiver of any such weapon; (3) any firearm muffler or firearm silencer; or (4) any destructive device. Such term does not include an antique firearm. (c) "Drug" as used herein shall include, but is not limited to, all narcotics, drugs, or controlled substances as defined in Chapter 2 (commencing with Section 11053) of Division 10 of the California Health and Safety Code. (d) "Public premises" includes (1) premises licensed with any type of licenses other than an on-sale beer license, and maintained and

operated for the selling or serving of alcoholic beverages to the public for consumption on the premises, and in which food shall not be sold or served to the public as in a bona fide public eating place, but upon which premises food products may be sold or served incidentally to the sale or service of alcoholic beverages; (2) premises licensed with an on-sale beer license, in which food shall not be served or sold to the public as in a bona fide public eating place, and in which sandwiches, salads, desserts, and similar short orders shall not be sold or served. (e) "Carrying" a firearm means to hold or bear said firearm upon one's person. (f) "Possessing" a firearm means to own, have or keep said firearm. (Added by Ord. 399-82, App. 8/12/82) SEC. 3602. CARRYING OF FIREARMS PROHIBITED WHILE UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE OR DRUG. (a) It shall be unlawful for any person who is under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to have upon his or her person a firearm. (b) It shall be unlawful for any person who has 0.10 percent or more, by weight, of alcohol in his or her blood to have upon his or her person a firearm. For the purposes of this Article, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood. (c) It shall be unlawful for any person who is addicted to the use of any drug to have upon his or her person a firearm. This provision shall not apply to a person who is participating in a methadone maintenance treatment program approved pursuant to Article 3 (commencing with Section 4350) of Chapter 1 of Part 1 of Division 4 of the California Welfare and Institutions Code. (Added by Ord. 399-82, App. 8/12/82) SEC. 3603. POSSESSION OF FIREARMS PROHIBITED WHILE UPON PUBLIC PREMISES SELLING OR SERVING ALCOHOLIC BEVERAGES. (a) It shall be unlawful for any person present upon public premises selling or serving alcoholic beverages to possess upon those premises a firearm. (b) Subsection (a) shall not apply to any of the following: (1) Peace officers listed in Sections 830.1, 830.2, 830.3, 830.31, 830.4, 830.5, and 830.6 of the California Penal Code, full-time paid peace officers of other states and the federal government who are carrying out official duties while in California, or any person summoned by any such officers to assist in making arrests or preserving the peace while such person is actually engaged in assisting such officer; (2) Any person owning, operating or managing said public premises, or any officer, employee, or agent authorized by such person to possess a firearm upon said public premises for lawful purposes connected therewith. (c) Nothing in this Section shall be interpreted or applied so as to conflict with the preemptive effect of any State law prohibiting the carrying of a loaded firearm in a public place. (Added by Ord. 399-82, App. 8/12/82) SEC. 3604. PRESUMPTION RAISED BY BLOOD ALCOHOL LEVEL. (a) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, pursuant to Section 3602, the amount of alcohol in a person's blood at the time of the test as shown by chemical analysis of that person's blood, breath or urine shall give rise to the following presumptions affecting the burden of proof: (1) If there was at that time less than 0.05 percent by weight of alcohol in the person's blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense. (2) If there was at that time 0.05 percent or more but less than 0.10 percent by weight of alcohol in the person's blood, such fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but such fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense. (b) Percent by weight of alcohol in the blood shall be based upon grams of alcohol per 100 milliliters of blood.

(c) This Section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense. (Added by Ord. 399-82, App. 8/12/82) SEC. 3605. CHEMICAL BLOOD, BREATH, OR URINE TESTS; OBLIGATION OF OFFICER TO ADVISE REGARDING LEGAL RIGHTS AND CONSEQUENCES; CONFISCATION OF FIREARM FOR REFUSAL TO SUBMIT TO TEST; HEARING. (a) (1) Any person who has upon his or her person a firearm while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, shall be deemed to have given his or her consent to a chemical test of his or her blood, breath, or urine for the purpose of determining the alcoholic content of his or her blood if lawfully arrested for any offense allegedly committed in violation of Section 3602. The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe the person had upon his or her person a firearm in violation of Section 3602. The person shall be told that his or her failure to submit to, or the noncompletion of, a chemical test will result in the confiscation of the person's firearm for a period of six months. (2) The person arrested shall have the choice of whether the test shall be of his or her blood, breath, or urine, and the person shall be advised by the officer that he or she has such a choice. If the person arrested either is incapable, or states that he or she is incapable, of completing any chosen test, the person shall then have the choice of submitting to and completing any of the remaining tests or test, and the person shall be advised by the officer that the person has that choice. (3) If the person is lawfully arrested for having upon his or her person a firearm while under the influence of an alcoholic beverage or under the combined influence of an alcoholic beverage and any drug, and, because of the need for medical treatment, the person is first transported to a medical facility where it is not feasible to administer a particular test of, or to obtain a particular sample of, the person's blood, breath, or urine, the person shall have the choice of those tests which are available at the facility to which that person has been transported. In such an event, the officer shall advise the person of those tests which are available at the medical facility and that the person's choice is limited to those tests which are available. (4) The person shall also be advised by the officer that he or she does not have the right to have an attorney present before stating whether he or she will submit to a test, before deciding which test to take, or during administration of the test chosen, and shall also be advised by the officer that, in the event of refusal to submit to a test, the refusal may be used against him or her in a court of law. (5) Any person who is unconscious or otherwise in a condition rendering him or her incapable of refusal shall be deemed not to have withdrawn his or her consent and such a test may be administered whether or not the person is told that his or her failure to submit to, or the noncompletion of, the test will result in the confiscation of his or her firearm. Any person who is dead shall be deemed not to have withdrawn his or her consent and such a test may be administered at the direction of a peace officer. (b) If any person refuses the officer's request to submit to, or fails to complete, a chemical test, the officer shall confiscate the person's firearm for a period of six months. (c) (1) Upon the person's request in writing and within 15 days from the date of receipt of that request, the law enforcement agency confiscating a weapon under this Article shall afford the person whose firearm has been confiscated an opportunity for a hearing in the same manner and under the same conditions as provided in Article 3 (commencing with Section 14100) of Chapter 3 of the California Vehicle Code. For the purposes of this Section, the scope of the hearing shall cover the issues of whether the peace officer had reasonable cause to believe the person had upon his or her person a firearm in violation of Section 3602, whether the person was placed under arrest, whether the person refused to submit to, or did not complete, the test after being requested by a peace officer, and whether, except for the persons described in Subdivision (a) who are incapable of refusing, the person had been told that his or her firearm would be confiscated if he or she refused to submit to, or did not complete, the test. (d) Any person who is afflicted with hemophilia shall be exempt from the blood test required by this Section. (e) Any person who is afflicted with a heart condition and is using an anticoagulant under the direction of a licensed physician and surgeon shall be exempt from the blood test required by this Section. (f) A person lawfully arrested for any offense allegedly committed while the person had upon his or her person a firearm in violation of Section 3602 may request the arresting officer to have a chemical testmade of the arrested person's blood, breath, or urine for the purpose of determining the alcoholic content of that person's blood, and, if so requested, the arresting officer shall have the test performed. (Added by Ord. 399-82, App. 8/12/82) SEC. 3606. ADMINISTRATION OF TESTS. (a) Only a physician, registered nurse, licensed vocational clinical laboratory technologist or clinical laboratory bioanalyst, or certified paramedic acting at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath specimens. An emergency call for paramedic services sh

OF TESTS. (a) Only a physician, registered nurse, licensed vocational clinical laboratory technologist or clinical laboratory bioanalyst, or certified paramedic acting at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath specimens. An emergency call for paramedic services shall take precedence over a peace

officer's request for a paramedic to withdraw blood for determining its alcoholic content.Acertified paramedic shall not withdraw blood for this purpose unless authorized by his or her employer to do so. (b) The person tested may, at his own expense, have a physician, registered nurse, licensed vocational nurse, duly licensed clinical laboratory technologist or clinical laboratory bioanalyst, or any other person of his or her own choosing administer a test in addition to any test administered at the direction of a peace officer for the purpose of determining the amount of alcohol in his or her blood at the time alleged as shown by chemical analysis of his blood, breath, or urine. The failure or inability to obtain an additional test by a person shall not preclude the admissibility in evidence of the test taken at the direction of a peace officer. (c) Upon the request of the person tested, full information concerning the test taken at the direction of the peace officer shall be made available to the person or the person's attorney. (d) No physician, registered nurse, licensed vocational nurse, duly licensed clinical laboratory technologist or clinical laboratory bioanalyst, or certified paramedic, or hospital, laboratory, or clinic employing or utilizing the services of the physician, registered nurse, licensed vocational nurse, duly licensed laboratory technologist or clinical laboratory bioanalyst, or certified paramedic, owning or leasing the premises on which such tests are performed, shall incur any civil or criminal liability as a result of the proper administering of a blood test when requested in writing by a peace officer to administer such a test. (e) If the test given under Section 3605 is a chemical test of urine, the person tested shall be given such privacy in the taking of the urine specimen as will ensure the accuracy of the specimen and, at the same time, maintain the dignity of the individual involved. (f) The appropriate law enforcement agencies, in cooperation with the State Department of Health Services or any other appropriate agency, shall adopt uniform standards for the withdrawal, handling, and preservation of blood samples prior to analysis. (g) As used in this Section, "certified paramedic" does not include any employee of a fire department. (Added by Ord. 399-82, App. 8/12/82) SEC. 3607. AUTHORIZED USE OF DRUGS. The fact that any person charged with carrying upon his or her person a firearm while under the influence of any drug or the combined influence of alcoholic beverages and any drug in violation of Section 3602 is or has been entitled to use the drug under the laws of this state shall not constitute a defense against any violation of the section. (Added by Ord. 399-82, App. 8/12/82) SEC. 3608. PARTICIPATION IN TREATMENT PROGRAM NOT GROUNDS FOR SUSPENDING OR DISMISSING PROCEEDINGS. (a) In any case in which a person is charged with a violation of Section 3602, prior to acquittal or conviction, the court shall not suspend or stay the proceedings for the purpose of allowing the accused person to attend or participate, nor shall the court consider dismissal of or entertain a motion to dismiss the proceedings because the accused person attends or participates during that suspension, in a treatment program for persons who are habitual users of alcohol or other alcoholism program, or a treatment program for persons who are habitual users of drugs or other drug-related program. (b) This Section shall not apply to any attendance or participation in any treatment programs after conviction and sentencing, including attendance or participation in any of those programs as a condition of probation granted after conviction when permitted pursuant to this Article. (Added by Ord. 399-82, App. 8/12/82) SEC. 3609. PENALTY. Any person who shall violate any of the provisions of Sections 3602 or 3603 of this Article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the County Jail for not less than 30 days nor more than six months. (Added by Ord. 399-82, App. 8/12/82) SEC. 3610. PROSCRIBED FIREARMS AS NUISANCE; SURRENDER AND DESTRUCTION; RESTORATION OF STOLEN FIREARMS TO OWNER.

(a) The unlawful carrying upon the person of a firearm in violation of Section 3602, or unlawful possession in violation of Section 3603, is a nuisance. (b) Any firearm described in Subdivision (a) shall be surrendered to the magistrate before whom the person is taken, except that in any city or county the firearms shall be surrendered to the head of the Police or Sheriff's Department. The officers to whom the firearms are surrendered, except upon the certificate of a judge of a court of record, or of the district attorney of the county, that the preservation thereof is necessary or proper to the ends of justice, shall annually, between the first and tenth days of July, in each year, destroy the firearms or cause them to be destroyed to such extent that they shall be wholly and entirely ineffective and useless for the purpose for which they were manufactured. If any firearm has been stolen and is thereafter recovered from the thief or his transferee, it shall not be destroyed but shall be restored to the lawful owner, in the event that owner is not prohibited from possessing the gun by Article 35 of the Police Code, as soon as its use as evidence has been served, upon his identification of the weapon and proof of ownership. (Added by Ord. 399-82, App. 8/12/82) SEC. 3611. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of the Article or any part thereof, is for any reason to be held unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Article or any part thereof. The Board of Supervisors hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitutional or invalid or ineffective. (Added by Ord. 399-82, App. 8/12/82)