Criminal Driving Offenses in MA

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DrEvil

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Guys, I realize this is a little OT, but I need some piece of mind.

I'm applying for my FFL and everything was moving along as quick as you would expect from the Federal Government, when I was supposed to have the license in hand by next week, I got a call yesterday saying that "something on my MA record" was holding up my background check with the FBI.

About 14 years ago I was in a bad place and ran from the cops on a street bike. While I realize it was not a great idea, it happened, and I got hit hard with fines, probation, and a suspended sentence.

I have to get down to Wouburn Distric Court or mail in the request, but the short term is killing me as I don't want this to ruin all of my business planning. Again, I realize that this is on me, I'm not looking for an easy answer, but what is the recourse for driving to endanger? I think that and failure to stop were the 2 "criminal" charges. I assume they are misdemeanors as I have purchased plenty of weapons in the past and have only ever been delayed (finally found out this is why) and always received a proceed before the 3 day window.

Anyway, I wasn't able to get a hold of the woman I've been dealing with at the ATF today, and I'm a little embarrassed to reach out to my IOI.

Does anyone here that knows the MA law more than me think that this will have significant impact on getting my FFL?

Sorry for the long wind, Its been bugging me for a solid 24 hours.
 
Driving to endanger

The statute which delineates the punishment for operating to endanger includes 60 days to two years jail time. Second offense has a minimum mandatory 60 days and two-year license loss
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I don't see "operating to endanger" in the list of citable offenses, but I do see reckless operation. I wonder if that was the charge. I'll have to get the docket. They said it may take a while as it's in storage...
 
DrEvil said:
I don't see "operating to endanger" in the list of citable offenses, but I do see reckless operation. I wonder if that was the charge. I'll have to get the docket. They said it may take a while as it's in storage...
Click to expand...


See Chapter 90 Section 24 (2)(a) https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section24

Maybe someone else knows more, but the failure to stop seems to only carry a $100 fine: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section25
 
Did you disclose this incident in Question 25 of the application form? In some cases, a non-disclosure will trigger a rejection when a disclosure would have been fine.
 
No because the sentence was suspended jail for not more than a year... basically fall out on probation, go to jail for a year.

Still cant get in contact with the examiner or anyone else in their dept.

I read through Section 24... It's a complicated read for sure.
 
Here's what I could find:
90/24/O RECKLESS OPERATION OF MOTOR VEHICLE c90 §24(2)(a)
on [DATE OF OFFENSE:] did operate a motor vehicle upon a way, as defined in G.L. c.90, §1, or in a place to which the public has a right of access, or in a place to which members of the public have access as invitees or licensees, recklessly, in violation of G.L. c.90, §24(2)(a). (PENALTY: imprisonment for not less than 2 weeks, not more than 2 years; or not less than $20, not more than $200; or both; subsequent offense may not be filed or continued without a finding except upon motion and judge's certificate that such is in the interests of justice; RMV may (and shall unless judge recommends otherwise) revoke license for 60 days or, for subsequent offenses within 3 years, for 1 year; RMV may revoke registration if defendant is owner or has exclusive control of vehicle. For infractions on and after 3/31/07, RMV shall revoke junior operator’s license for 180 days or, for subsequent offenses within 3 years, for 1 year.)

90/24/E NEGLIGENT OPERATION OF MOTOR VEHICLE c90 §24(2)(a) (Effective 7/10/97-6/30/03)
on [DATE OF OFFENSE:] did operate a motor vehicle upon a way, as defined in G.L. c.90, §1, or in a place to which the public has a right of access, or in a place to which members of the public have access as invitees or licensees, negligently, so that the lives or safety of the public might be endangered, in violation of G.L. c.90, §24(2)(a). (PENALTY: imprisonment for not less than 2 weeks, not more than 2 years; or not less than $20, not more than $200, plus $125 Head Injury Treatment Services Trust Fund surcharge; or both imprisonment and fine; subsequent offense may not be filed or continued without a finding except upon motion and judge's certificate that such is in the interests of justice; RMV may (and shall unless judge recommends otherwise) revoke license for 60 days or, for subsequent offenses within 3 years, for 1 year, subject to reinstatement after investigation; RMV may revoke registration if defendant is owner or has exclusive control of vehicle.)

90/25/D STOP FOR POLICE, FAIL c90 §25
on [DATE OF OFFENSE:], while operating or in charge of a motor vehicle, did refuse or neglect to stop when signalled to stop by a police officer who was in uniform or who displayed his or her badge conspicuously on the outside of his or her outer coat or garment, in violation of G.L. c.90, §25. (PENALTY: $100.)
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I wonder if it changed since the trial. But who knows at this point. I'll just have to wait. Hopefully the blowback is minor.
 
browncoat said:
Did you disclose this incident in Question 25 of the application form? In some cases, a non-disclosure will trigger a rejection when a disclosure would have been fine.
Click to expand...
There is nowhere is question 24,25,or 26 to disclose a misdemeanor that does not (1) have the effect of a felony conviction (2) was not a crime of domestic violence or (3) is not component to something else that is supposed to be disclosed.

By their nature, my understanding is that FBI criminal history reports are supposed to be a directory for the recipient to use in order to locate potential records regarding the subject. Now that they have received that report, their job is to locate records regarding the incident and determine if those disqualify the individual from licensure.

 
DrEvil said:
No because the sentence was suspended jail for not more than a year... basically fall out on probation, go to jail for a year.

Still cant get in contact with the examiner or anyone else in their dept.

I read through Section 24... It's a complicated read for sure.
Click to expand...

If the maximum sentence of 2 years of the offenses that swatgig listed were in place at the time you were convicted, you would have been obligated to report it on the application form. I said question 25, should have said 26. It reads:

" Been Convicted in any Court of a Felony, or any other crime for which the Judge Could Have ImprisonedYou for More Than One Year, Even if You Received a Shorter Sentence, Including Probation?²"

The length of the sentence you served or had suspended doesn't matter, what matters is the maximum sentence you could have served. Since the maximum sentence is 2 years, those charges should have been reported.

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JAD said:
There is nowhere is question 24,25,or 26 to disclose a misdemeanor that does not (1) have the effect of a felony conviction (2) was not a crime of domestic violence or (3) is not component to something else that is supposed to be disclosed.

By their nature, my understanding is that FBI criminal history reports are supposed to be a directory for the recipient to use in order to locate potential records regarding the subject. Now that they have received that report, their job is to locate records regarding the incident and determine if those disqualify the individual from licensure.
Click to expand...


Question 26A doesn't qualify, it simply says any crime with max sentence greater than 1 year.
Been Convicted in any Court of a Felony, or any other crime for which the Judge Could Have ImprisonedYou for More Than One Year, Even if You Received a Shorter Sentence, Including Probation?
 
DrEvil said:
90 plus a year. They ran together.
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That's what you were sentenced to. What matters is the MAX sentence that could have been imposed. If the max was 1 year, you were fine. If the max was 2 years, you are not fine.


My understanding is that MA doesn't expunge these types of convictions like some states do. There is a footnote on question 26 that says "You may answer NO if (a) you have been pardoned for the crime or (b) the conviction has been expunged or set aside or (c) your civil rights have beenrestored AND you are not prohibited from possessing or receiving any firearms under the law where the conviction occurred."

Since MA doesn't routinely expunge things, I'm guessing that you would need to get a lawyer to get it expunged.
 
Yeah, that will be my ultimate goal however, the short term is that they are running the bg check now.

One thing the specialist said at atf was she needed the disposition. She also asked when the last time was that I purchased a firearm. I figured I was ok because I've never been denied, but I'm guessing applying for an ffl the bg check goes a little deeper than a standard nics.
 
Looksl ike getting it expunged is next to impossible. Think sealing it would clear things up? I'm guessing no due to the nature of the business.
 
This was from an Attourney about an OUI charge, but gives a support to how the expungement/sealing process works for future reference.

The best way to keep it off your record is to never have been charged with the crime in the first place. I'm not trying to be flippant about this, I'm pointing out to you and others that read this question a little known fact about criminal records in Massachusetts: that once you are arraigned on the charge, it will go onto your CORI (criminal offender record information, or "criminal record") and stay there, regardless of the outcome of the case. Charge gets dismissed? It's on your CORI, albeit as a dismissal. You are found not guilty? The charge still shows on your CORI, as a Not Guilty.

The difference that the outcome of the case makes is 1) how the charge looks on your record, 2) who can see the charge on the record and 3) how long you have to wait to seal (not expunge) your record.

As to 2): most parties who pull your record will only be able to see "convictions" (charges that you were found guilty of or plead guilty to), whereas other requestors with enhanced access (such as hospitals and day care centers) can see convictions and non-convictions. A dismissal, either outright or after a period of probation in a Continued Without a Finding (CWOF) situation, is a non-conviction, as is a Not Guilty. Guilty Filed, Guilty Probation, Guilty Suspended Sentence or Guilty jail time are all convictions.

As to 3): There is no waiting period to seal the CORI for non-convictions. For convictions, you must wait 5 years (for misdemeanors) and 10 years (for felonies) to seal the CORI. A first offense OUI is a misdemeanor.

To answer your question, there is a way to seal your record if you take a plea without waiting a long time. Your plea must be for a non-conviction, and you must petition the court to seal your record pursuant to G.L. chapter 276, section 100C. If this is a first-offense OUI, a standard plea deal is a CWOF for 12 months, with a dismissal upon the successful completion of probation. You do not have to wait 5 years to seal under 100C, you can petition to seal immediately upon the dismissal. A judge will hear your sealing petition and decide if you have met the statutory tests for sealing. If the judge feels you have satisfied these tests, he or she will allow your sealing petition. If not, then he or she will deny it. It is a fairly challenging task to convince a judge to seal a charge, especially a charge that was just dismissed after a period of probation commenced by an admission of facts sufficient to warrant a finding of guilt, and especially an OUI - retain competent counsel to assist you in sealing your CORI. Work closely with the attorney who is handling the OUI case now and beat it if you can. If you can't beat it and have to plea, make sure to plea to a non-conviction to optimize your ability to seal this from your CORI in the future.
 
DrEvil said:
Looksl ike getting it expunged is next to impossible. Think sealing it would clear things up? I'm guessing no due to the nature of the business.
Click to expand...

Sealing doesn't clear up shit WRT the government... it makes people feel good that's about it.

-Mike
 
Unfortunately, The only way for me to proceed is to a: request me record from the court and b: keep reaching out to ATF to get an answer on the issue.

I know things get missed on NICS sometimes, but when you are delayed, it is the sole purpose of the specialist to dig deeper into the issue to find out what the root cause of the delay is. Now I would think (and this is just speculation) that if the charges were beyond what was deemed legal in the eyes of the government, I would have been denied. As I said, I have always been delayed through NICS (never through State Police) and I have even pulled my criminal BG in NH for a job that would have definitely flagged a misdemeanor.

Once I know what the exact charges were, I will be able to get more clarification. I'm going to see if they can at least give me the DP codes over the phone while I wait for the copies to come int he mail.
 
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DrEvil said:
I don't see "operating to endanger" in the list of citable offenses, but I do see reckless operation. I wonder if that was the charge. I'll have to get the docket. They said it may take a while as it's in storage...
Click to expand...
They're the same thing. Most officers including me use the terms "negligent operation" or "reckless operation" and "operating to endanger" interchangeably, but we're referring to the same thing.

Operating to endanger has two varieties: reckless and negligent, but most police departments charge the negligent variety because the penalty is the same and negligence is usually easier to prove.


browncoat said:
See Chapter 90 Section 24 (2)(a) https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section24

Maybe someone else knows more, but the failure to stop seems to only carry a $100 fine: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section25
Click to expand...

Yup. Failure to stop for the police is an arrestable criminal offense, but carries a $100 max penalty.
 
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browncoat said:
If the maximum sentence of 2 years of the offenses that swatgig listed were in place at the time you were convicted, you would have been obligated to report it on the application form. I said question 25, should have said 26. It reads:

" Been Convicted in any Court of a Felony, or any other crime for which the Judge Could Have ImprisonedYou for More Than One Year, Even if You Received a Shorter Sentence, Including Probation?²"

The length of the sentence you served or had suspended doesn't matter, what matters is the maximum sentence you could have served. Since the maximum sentence is 2 years, those charges should have been reported.

- - - Updated - - -




Question 26A doesn't qualify, it simply says any crime with max sentence greater than 1 year.
Been Convicted in any Court of a Felony, or any other crime for which the Judge Could Have ImprisonedYou for More Than One Year, Even if You Received a Shorter Sentence, Including Probation?
Click to expand...

I believe that reckless operation is punishable by up to 2 years (per the current Master Crime List).

However, because it is a state law misdemeanor and is not punishable by more than two years, it does not fall within the meaning of the term "crime punishable by a term of imprisonment exceeding one year" which is a term of art defined by the Gun Control Act.

(20) The term "crime punishable by imprisonment for a term exceeding one year" does not include --(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Click to expand...
 
One thing I forgot is that I did hold an 03 FFL in the past (Expired 2011)

I can't do the icori as I am out of state... I have to mail it in.
 
3 Charges...

Negligent operation
Reckless operation
Failure to stop

Disposition on all 3 was Guilty. Term was not more than 2 years, sentence was 1 year suspended.

Looks like I need to brace for impact... I'm still being somewhat optimistic in light of the GCA find.
 
JAD said:
I believe that reckless operation is punishable by up to 2 years (per the current Master Crime List).

However, because it is a state law misdemeanor and is not punishable by more than two years, it does not fall within the meaning of the term "crime punishable by a term of imprisonment exceeding one year" which is a term of art defined by the Gun Control Act.
Click to expand...

Oh, nice. I didn't know that the GCA definition applied to more than just the PP definition.

I apologize for the bad info.
 

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