TN Opinion No. 23-04 2023-02-28

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?

Short answer: No. The DUI lookback in the firearm-after-DUI statute mirrors the DUI lookback in the permit eligibility statute. If your DUI history is old enough that you can lawfully hold an enhanced permit, the offense statute by its terms doesn't reach you, and § 39-17-1308(a)(2) gives an explicit defense to anyone authorized to carry under the permit statute.

Disclaimer: This is an official Tennessee Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Tennessee attorney for advice on your specific situation.

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

If you have an enhanced handgun carry permit and a single old DUI

The AG opinion is good news. If your DUI conviction is more than five years old and you have only one DUI in the last ten years, the permit statute lets you hold the permit, and the carry-after-DUI offense in § 39-17-1307(h)(1)(B) does not apply to you. Carrying with intent to go armed is not an offense for you under that subsection. Carry the permit, of course, and follow the other place-based and conduct-based rules (no carrying while intoxicated, no carrying in prohibited places, and so on).

If you have two or more DUI convictions in the last ten years, or any DUI in the last five

You are not eligible for an enhanced handgun carry permit under § 39-17-1351(c)(11). You should not be applying or renewing while disqualified, and the offense statute reaches you if you carry with intent to go armed.

If you are a Tennessee prosecutor

Before charging under § 39-17-1307(h)(1)(B), check the defendant's permit status. A valid enhanced permit holder whose DUI history is below the disqualifying thresholds has a complete statutory defense under § 39-17-1308(a)(2), and the AG's opinion confirms the offense itself does not reach permit-eligible carriers. The prosecution path runs only against people whose DUI history actually exceeds the lookback windows.

If you are a defense attorney

The opinion is a useful citation for any § 39-17-1307(h)(1)(B) charge against a permit holder. Two arguments stack: first, the offense statute does not reach a permit-eligible carrier on its plain terms; second, § 39-17-1308(a)(2) provides an express defense.

If you are a sheriff's office carry permit unit

This opinion does not change your eligibility processing. The DUI disqualification under § 39-17-1351(c)(11) is what it has always been: two-or-more DUIs in ten years, or any DUI in five years, disqualifies. The opinion only confirms that someone you correctly issue a permit to is also outside the carry-after-DUI offense.

Common questions

Q: Does the permit forgive an older DUI?
A: The opinion says the offense statute and the permit statute use mirror lookback windows. If your last DUI was more than five years ago and you only have one DUI in the last ten, you are not disqualified from a permit and you are not within the offense statute. The DUI is not "forgiven" generally; it is just outside the temporal window the statute uses.

Q: What about the concealed-carry permit (the non-enhanced version)?
A: This opinion is specifically about the enhanced handgun carry permit under § 39-17-1351. The concealed handgun carry permit (§ 39-17-1366) has its own framework. Tennessee permit statutes have evolved frequently; check the current version before relying on a non-enhanced permit framework.

Q: What is the scope of the AG's analysis?
A: The AG explicitly limits its scope to statutory interpretation (footnote 1). The opinion does not address constitutional questions or the application of these provisions to permit-less carry under Tenn. Code Ann. § 39-17-1307(g) (constitutional carry). Constitutional carry has its own rules.

Q: Does this work the same way for a non-Tennessee DUI?
A: Yes. Both the offense statute and the permit eligibility statute reference DUI convictions "in this or any other state."

Q: I had two DUIs nine years ago. Am I disqualified?
A: Two DUIs in the prior ten years disqualifies you for an enhanced permit under § 39-17-1351(c)(11), even if both were eight or nine years old. The disqualification is two-or-more in the ten-year window, full stop. And § 39-17-1307(h)(1)(B) reaches you if you carry with intent to go armed.

Q: Does this opinion apply to felony or misdemeanor possession statutes generally?
A: No. It applies only to the firearm-after-DUI offense in § 39-17-1307(h)(1)(B). Other possession-based crimes (felon-in-possession, possession during commission of an offense, drug-related possession) have their own elements and defenses.

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." That layer is the second route by which a valid enhanced permit holder is outside the offense.

The Tennessee Supreme Court in State v. Williamson, 368 S.W.3d 468 (Tenn. 2012), recognized that "one's status as an 'armed party' is not per se illegal," reflecting the same statutory architecture: the offense statute identifies who can be prosecuted, and the permit statute identifies who can be authorized to carry.

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)
- Tenn. Code Ann. § 39-17-1351(n)(1) (permit holder may carry with intent to go armed)

Cases:
- State v. Williamson, 368 S.W.3d 468, 480 (Tenn. 2012), armed status is not per se illegal

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