DUI = Loss of LTC ?

[Rob Boudrie]

When did the FLRB route become ineffective?

Word about this has started to get out within the past year (perhaps sooner, but I may have missed it). The FBI and BATFE has been cagey about this and reluctant to issue a statement clarifying all aspects of their "prohibited person" interpretation and is just "doing things" that indicate a broad and expansive view if the prohibited person concept. Word on the street is that there has not been any effort given to prosecuting persons with FLRB relief as felons in possession(*), however, there have been cases where someone denied via NICS filed a NICS denial appeal, provided proof that the FLRB restored their rights, and lost the NICS appeal. The feds position is that the FLRB is not a "governor's pardon" and therefore does not count.


* - Note that under 18 USC 921 the term "felon" has it's own definition for disability that includes >2 year misdemeanors, but excludes felonies involving anti-trust or restraint of trade.

BTW, just in case anyone was interested, if you choose to pay an attorney to fight your OUI, your chances of winning are likely over 70%, and even higher if you don't blow and don't take field sobriety.

This is a VERY high stakes game. Lose and you are federally disqualified for life. Fold (take the first offense CWOF) and it costs you a bundle of money (but perhaps not any more than a jury trial), but can avoid the 30% chance of having your life changed forever.

The reason refusing the breath test is so effective is that the jury may not be told the reason for the lack of the breath test, and must judge the case based on available evidence - and, despite the judge's admonition that no inference should be drawn from the lack of a test, will be thinking "gee, I could be prosecuted for DUI and not given a breath test to prove my innocence.".

One of the most important lessons any BFS instructor should include in a MA course is discussion of how expansive the 2 1/2 year misdemeanor concepts are, and the DUI issue. It's amazing how many experienced gun owners don't know this stuff, or think that only a felony (in the actual, not the 18USC921 sense of the word) or domestic violence conviction will create a lifetime disability.

 

[OfficerObie59]

The reason refusing the breath test is so effective is that the jury may not be told the reason for the lack of the breath test, and must judge the case based on available evidence - and, despite the judge's admonition that no inference should be drawn from the lack of a test, will be thinking "gee, I could be prosecuted for DUI and not given a breath test to prove my innocence."

Provided the case even goes to a jury. IME, most defendants opt for a bench trial, as the judge is more likely to correctly apply the law in this regard than a jury.

 

[LT1MCSS]

Ok, I am a little confused here. Maybe someone can clarify something for me. I understand if you are convicted even on a first offense that it is a misdemeanor punishable by up to 2.5 years in jail and you are then a federally disqualified person.

Now I'm pretty sure because those are the MA laws this generally only applies to people in MA. If you are a resident of another state for instance and get a first offense DUI the penalty might not be as severe and you would then not become a federally disqualified person. At least this is how I have come to understand it. I'm just curious if this is correct.

 

[M1911]

If you are a resident of another state for instance and get a first offense DUI the penalty might not be as severe and you would then not become a federally disqualified person. At least this is how I have come to understand it. I'm just curious if this is correct.

It would depend upon the maximum possible sentence for the DUI in the jurisdiction where someone was convicted. If it was less than 2 years, then it would not be a federal disqualification.

 

[LT1MCSS]

It would depend upon the maximum possible sentence for the DUI in the jurisdiction where someone was convicted. If it was less than 2 years, then it would not be a federal disqualification.

Oh ok, yeah that's what i was getting at. I don't know the state by state laws on first offenses. I'm assuming there are a lot of states that are a lot more lax on a first offense than MA. I'm not saying even getting 1 is a good thing. It obviously is not and you should always be mindful of how much you drink when your driving. Its just another thing one has to keep in mind in MA. Others are right though, most people do not realize they could become disqualified for life for something like that.

 

[M1911]

That's my understanding. Of course, IANAL, so there may be something I'm missing. Also, you still have the whole suitability quagmire.

 

[Rob Boudrie]

Ok, I am a little confused here. Maybe someone can clarify something for me. I understand if you are convicted even on a first offense that it is a misdemeanor punishable by up to 2.5 years in jail and you are then a federally disqualified person.

Now I'm pretty sure because those are the MA laws this generally only applies to people in MA. If you are a resident of another state for instance and get a first offense DUI the penalty might not be as severe and you would then not become a federally disqualified person. At least this is how I have come to understand it. I'm just curious if this is correct.

You understand correctly.

The law that applies is based on where the offense takes place, not the suspect's residence (which is probably what you meant).

Others are right though, most people do not realize they could become disqualified for life for something like that.

Anyone who takes one of my classes does, unless I put them to sleep during the lecture portion of the course (always a distinct possibility).

 

[Doghead]

Question. Will an out of state OUI where the maximum penelty is up to 2 years be a deal breaker in MA. The case is pending and I have a legal team fighting the case. 1st offense and I have been told it is possible to get the charge reduced to Neg Op which is "not more than 1 year". I understand that the 2 year might trigger a federal disqulifier but if I get it reduced to Neg Op am I in the clear for my MA LTC if there is no conviction of the OUI? So far the I do not think any of this has followed me to MA as I still after 8 months haven't been given a court date and I have not heard anything.
Thanks

 

[terraformer]

No, it's over 2 years which is a "deal breaker". So anything up to 2 years is not a DQ unless it's a drug or weapons charge.

 

[edin508]

No, it's over 2 years which is a "deal breaker". So anything up to 2 years is not a DQ unless it's a drug or weapons charge.

No, it's up to 2 years. 2 years is the magic number.
You will need to wait until your case is over to get all of the facts. Even if you are on probation, you can't hold a valid lic. AND, there is a waiting period after probation that you need to wait until you are eligible to apply for one. ( I think it is 2 years )
Can't say a lot until your case is done and you see what you get.

 

[Doghead]

It's remarabke on how confusing it is, because when I looked at the Brady Law the background check it reads that "1.Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;" so does that mean I can only buy a gun from another gun owner and not a FFL that requires a check?

 

[Doghead]

No, it's up to 2 years. 2 years is the magic number.
You will need to wait until your case is over to get all of the facts. Even if you are on probation, you can't hold a valid lic. AND, there is a waiting period after probation that you need to wait until you are eligible to apply for one. ( I think it is 2 years )
Can't say a lot until your case is done and you see what you get.

Thanks -- I'm just trying to get some facts so I don't agree to anything that will have a negative imact on my LTC. I have been told by my legal team that I will probably get it reduced but need to know what I should be fighting for. I am probably going to get some in state counsel to help with the LTC aspects. The guys I have working on the case aren't 2d amend. experts but are on OUI.

 

[edin508]

It's remarabke on how confusing it is, because when I looked at the Brady Law the background check it reads that "1.Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;" so does that mean I can only buy a gun from another gun owner and not a FFL that requires a check?

Don't read stuff there, that is a start.
You need to get your lic. first. No one can sell you one legally without one.
That should be your only concern now.

 

[Doghead]

Don't read stuff there, that is a start.
You need to get your lic. first. No one can sell you one legally without one.
That should be your only concern now.

Already have it.....just want keep it

 

[edin508]

Already have it.....just want keep it

Good luck! MA is tough.

 

[Chase]

depends of what kind of DUI .. an agravated will get you a felony charge , i have a close friend who went through this same scenario . DUI 2 years ago , and his ltc renewal went through smoothly . he had a guilty conviction , ultimatly it comes down to your town P.D. and chief they can refuse you if they think you are "unsuitable"

 

[Doghead]

Good luck! MA is tough.

Thx- .085 was enough to wreck my weekend/year. No accident, no speeding...nada. At least I have a home in one of the few states where permits don't exist so I'll keep my guns and ammo.

 

[terraformer]

No, it's up to 2 years. 2 years is the magic number.
You will need to wait until your case is over to get all of the facts. Even if you are on probation, you can't hold a valid lic. AND, there is a waiting period after probation that you need to wait until you are eligible to apply for one. ( I think it is 2 years )
Can't say a lot until your case is done and you see what you get.

No it's not. It's >= 2 years and a day which is a DQ, = 2 years and below which is not. Period. And probation for a non disqualifying event is not an issue federally or state wise. It is a CWOF for a disqualifying event which no one knows for sure is a problem federally and that would at the worst be an issue for §922(g or n?) which is the transfer/receiving statute.

 

[RHJJ]

I know a person in Wareham that got busted for dui it was CWOF he still has an unrestricted ltc, that was renewed. I think it depends on your town.

 

[GaryO]

depends of what kind of DUI .. an agravated will get you a felony charge , i have a close friend who went through this same scenario . DUI 2 years ago , and his ltc renewal went through smoothly . he had a guilty conviction , ultimatly it comes down to your town P.D. and chief they can refuse you if they think you are "unsuitable"

Your post seems confusing, if what Rob is saying is correct, and i have no reason to think it isnt, any dui conviction will make you a prohibited person by federal mandate not COP.

 

[Fixxah]

Thx- .085 was enough to wreck my weekend/year. No accident, no speeding...nada. At least I have a home in one of the few states where permits don't exist so I'll keep my guns and ammo.

If you are federally prohibited to posess them then you face time in the big house, no? Unless of course you are a gangbanger.

 

[terraformer]

I know a person in Wareham that got busted for dui it was CWOF he still has an unrestricted ltc, that was renewed. I think it depends on your town.

CWOFs are an interesting beast. Statewise they are not an issue by statute. As you said, it all depends on the suitability issue. But federally I am not convinced they are not a problem for the period of the CWOF. And it has nothing to do with the probation, I am talking the period where the CWOF is still in effect and the charge has yet to be dismissed. Federally this may be an issue but it's not clear.

 

[edin508]

No it's not. It's >= 2 years and a day which is a DQ, = 2 years and below which is not. Period. And probation for a non disqualifying event is not an issue federally or state wise. It is a CWOF for a disqualifying event which no one knows for sure is a problem federally and that would at the worst be an issue for §922(g or n?) which is the transfer/receiving statute.

Do you have personal experience with this?
It is up to 2 years. That usually comes with a 2nd OUI though, not a first.

 

[terraformer]

Your post seems confusing, if what Rob is saying is correct, and i have no reason to think it isnt, any dui conviction will make you a prohibited person by federal mandate not COP.

No, only 1st time DUIs in MA are disqualifiers. Everywhere else they are not.

If you are federally prohibited to posess them then you face time in the big house, no? Unless of course you are a gangbanger.

But he is not, because the DUI is not in MA.


OK, everyone STOP giving bad information. Just please stop.

 

[terraformer]

Do you have personal experience with this?
It is up to 2 years. That usually comes with a 2nd OUI though, not a first.

(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.

Note 2 years or less is NOT a disqualifier. Therefore, >2 years is...

 

[drgrant]

Guys- Listen to terraformer on this- He probably has done more legwork on this issue than all of us combined, save for maybe the banned barrister.

 

[Chase]

Your post seems confusing, if what Rob is saying is correct, and i have no reason to think it isnt, any dui conviction will make you a prohibited person by federal mandate not COP.

Thats why i sugested it all come down to your town , he has a guilty conviction and it rolle right on through , he also brouht it up at time of interview, as to not "hide" anything ... but on the contrary i myself had mine denied renewal/revoked in ma for a criminal misdameanor in nh that was thrown out of court with a not guilty verdict only resulting in a traffic offence . nh didnt care and my nh permit to conceal was still valid until my local chief deemed me "unsuitable for renewal" that was 7-8 years ago , i just got my ltc back a few months ago and finally was able to transfer my firearms back ! so my post may seem confusing because it is ... they can deny for any reason that the chief seems fit ! you can easily file against it but you have to open a case irectly against the acting chief in your town .... not a smart idea !

 

[Chase]

an sorry about all the missing letters in my spelling ...keyboard is on its way out have to basically puch the d's and g's to get them to work .

 

[edin508]

Guys- Listen to terraformer on this- He probably has done more legwork on this issue than all of us combined, save for maybe the banned barrister.

Does he have personal experience with this?
I sure as hell do!

 

[Rob Boudrie]

Your post seems confusing, if what Rob is saying is correct, and i have no reason to think it isnt, any dui conviction will make you a prohibited person by federal mandate not COP.

A DUI conviction in MA on or after May 27, 1994 makes the subject a federally prohibited person. This is for an actual "conviction" - a CWOF is not a conviction for the purposes of state and federal firearms disqualification, however, it is treated as if it is a conviction for determination if a subsequent DUI offense is a "repeat offense".

T.Former has an excellent term for the 2 1/2 year misdemeanor (very common in the MA statutes) - "misdafelony".

Although the FLRB can grant state level relief from the DUI disability, the feds and NICS will not accept this relief as valid as the federal position is that you can only be given back you gun rights by the state as part of "civil rights restoration" and, since DUI does not trigger a loss of voting rights, FLRB restoration of gun rights is not "restoration of civil rights". (We're talking major league newspeak here).

depends of what kind of DUI .. an agravated will get you a felony charge , i have a close friend who went through this same scenario . DUI 2 years ago , and his ltc renewal went through smoothly . he had a guilty conviction , ultimatly it comes down to your town P.D. and chief they can refuse you if they think you are "unsuitable"

If the DUI happened 2 years ago, and was a conviction (not a CWOF that bears certain practical similarities to a conviction) for DUI in MA, the police department is prohibited by statute from issuing him an LTC. This is because the 2 1/2 year maximum sentence meets the 18USC921 definition of "felony" - which is the one that counts when Yes, he can get FLRB relief after 5 years with a bit of luck, but see my earlier comment on how that does not resolve the federal disability.

Either the information is not precisely as you stated, or the PD issued your friend an LTC in violation of MGL.