Legal question about gun license.

[samsquamch1981]

A friend of mine is on probation for driving to endanger. The case is considered with no finding. He was never arrested. My question is will he be able to get his gun license? He lives in a green town. He already took his safety class.
Thank you.

 

[terraformer]

If he was cwof'd he should be able to get his license from a statutory perspective but the friend must notify that he was a defendant in the case on his app and there is a suitability issue that may pop up. One thing he needs to keep in mind, if he is still in the terms of his CWOF he may not be able to get the license until the dismissal occurs.

 

[appraiser]

I would do nothing while on probation.

It may go to suitability when the time comes.

You really have to F up to get charged with driving to endanger, if it happened in the town he is applying in they will know "the rest of the story"

Best advice, wait, apply for an FID, wait a year after that, then apply.

Unless he knows the C.O.P. will issue one, even a B or restricted LTC A

Denials suck, and they follow you for a long time and make future licensing difficult.

What C.O.P. is going to look at someone that can't drive responsibly and hand them a gun permit?

 

[terraformer]

I would do nothing while on probation.

It may go to suitability when the time comes.

You really have to F up to get charged with driving to endanger, if it happened in the town he is applying in they will know "the rest of the story"

Best advice, wait, apply for an FID, wait a year after than, then apply.

Unless he knows the C.O.P. will issue one, even a B or restricted LTC A

Denials suck, and they follow you for a long time and make future licensing difficult.

If (s)he is on probation under the cwof, they can't even apply. They have to wait.

 

[SClaflin]

If (s)he is on probation under the cwof, they can't even apply. They have to wait.

Why is that? I never really came across this issue, but I don't see how they would be statutorily barred from applying in such a situation. I'm not saying they shouldn't wait, I just don't see why they have to wait.

 

[terraformer]

Why is that? I never really came across this issue, but I don't see how they would be statutorily barred from applying in such a situation. I'm not saying they shouldn't wait, I just don't see why they have to wait.

My understanding is the CWOF does not dispose of the underlying charge until the dismissal at the end of the probationary period. Federally, there are various prohibitions against people who have been indicted/arraigned* of various types of charges and until final disposition, those prohibitions should logically still apply. CWOFs are effectively contracts. The terms of which are based on what I imagine is boiler plate but which can be negotiated with the ADA. I don't know what this guy's says but a guy who has a serious driving charge in a CWOF currently should keep his head down. As for the above, MAYBE, there is a chance that they can apply and get it (forgetting about suitability for a moment) because the driving to endanger is 2 years. I was more circumspect in my first post and should not have been black and white in the post you quoted. But I can't imagine a CWOF on a disqualifying conviction while the person is still within the probationary period clears them for the license.

In NY they call them "[STRIKE=.]continuances in lieu of dismissal[/STRIKE] Adjournment in contemplation of dismissal" which makes it clearer as to what comes next.


ETA: * The state has no prohibitions but the federal one is no purchasing while under indictment, possession is OK. If I am right about the status of the CWOF while in the probationary period, and someone goes and gets a license with a disqualifying indictment/arraignment and buy a gun, they are committing a federal felony as per §922(n).

The golden rule in firearms law is check both jurisdictions.

 

[Rob Boudrie]

In NY they call them "continuances in lieu of dismissal" which makes it clearer as to what comes next.

The NY term is "Adjournment in contemplation of dismissal" (ACD)

 

[terraformer]

The NY term is "Adjournment in contemplation of dismissal" (ACD)

Ah, yes. I have been gone too long and combined the MA and NY versions (or that's the RI term... I have lived too many places) in my memory. The point I was making that the term in NY makes it clearer what is about to happen is still correct.

 

[samsquamch1981]

Thank you for your assistance everyone and I will pass this information to my friend.

 

[Smash05]

The procedure for taking a CWOF requires that you make an admission on the record that there is sufficient information in the police report to find you guilty. However, in consideration for that admission, the Court continues that matter for a period of time - this period of time is often termed a probation - either way it is a set of conditions which must be met by the defendant. If those conditions are met by the defendant during the probationary period, the case will be dismissed. The distinction here is that if you fail to complete those conditions, or you commit another crime, the Commonwealth can move to revoke the CWOF, and seek a guilty finding on your record. Knowing this bit of info, you can see where applying for a license may be a no go for someone on a CWOF - as far as the C.O.P. is concerned you could end up with a guilty finding on your record up until the day that the case is actually dismissed. You are not under arraignment when you CWOF - it is a disposition, jeopardy attaches, you cannot be re-tried, and you cannot litigate the issues in your case if you CWOF.

 

[Rob Boudrie]

The procedure for taking a CWOF requires that you make an admission on the record that there is sufficient information in the police report to find you guilty. However, in consideration for that admission, the Court continues that matter for a period of time - this period of time is often termed a probation - either way it is a set of conditions which must be met by the defendant. If those conditions are met by the defendant during the probationary period, the case will be dismissed. The distinction here is that if you fail to complete those conditions, or you commit another crime, the Commonwealth can move to revoke the CWOF, and seek a guilty finding on your record. Knowing this bit of info, you can see where applying for a license may be a no go for someone on a CWOF - as far as the C.O.P. is concerned you could end up with a guilty finding on your record up until the day that the case is actually dismissed. You are not under arraignment when you CWOF - it is a disposition, jeopardy attaches, you cannot be re-tried, and you cannot litigate the issues in your case if you CWOF.

Close. A CWOF in MA is submitted either with ASF (Admission to Sufficient Facts) or without ASF. My understanding that that many, perhaps most, courts will not accept a CWOF without ASF. The purpose of ASF, as explained to me by the late Cross-X (Darius Arbabi) is that it may be used against you if it becomes necessary to "uncontinue" the case, thus saving the commonwealth the hassle of attempting to prove the original crime that was continued.

There is one lawyer who issued an opinion (generally considered to be wrong by the relevant experts in the field, including every gun attorney I have spoken with) that under the rules of procedure a CWOF w/ASF is functionally identical to a conviction for the purpose of LTC issuance. One still sees the occasional PD information sheet that contains a cut&paste from this original dubious assertion.

 

[terraformer]

The procedure for taking a CWOF requires that you make an admission on the record that there is sufficient information in the police report to find you guilty. However, in consideration for that admission, the Court continues that matter for a period of time - this period of time is often termed a probation - either way it is a set of conditions which must be met by the defendant. If those conditions are met by the defendant during the probationary period, the case will be dismissed. The distinction here is that if you fail to complete those conditions, or you commit another crime, the Commonwealth can move to revoke the CWOF, and seek a guilty finding on your record. Knowing this bit of info, you can see where applying for a license may be a no go for someone on a CWOF - as far as the C.O.P. is concerned you could end up with a guilty finding on your record up until the day that the case is actually dismissed. You are not under arraignment when you CWOF - it is a disposition, jeopardy attaches, you cannot be re-tried, and you cannot litigate the issues in your case if you CWOF.

So you are saying that a CWOF is a disposition, just not the final disposition, and that the arraignment is over at that point, but one can still be found guilty of the crime in the future during the predefined window where the charge can be resurrected, so it's not really disposed of. Yeah, this is what I have come to expect from the legal system. Nice and logical... I am not doubting you, this could very well be the case. I just want to point out that disposition means "final settlement". It doesn't make logical sense but again, the illogical is not unsurprising here.

So you are saying that CWOFs only matter to suitability, even during the active continuance window. It sure as hell isn't a smart idea, which is the purpose of my saying anyone involved in this type of situation should keep their head down and not attract attention to themselves.

 

[Smash05]

It is very logical, and it is a disposition. It is possible to have a CWOF that ends in days, or months. It is not over until it is dismissed or otherwise. You can have several types of dispo short of a guilty finding. You can have dismissed prior to arraignment on payment of a fine or community serivce, you can have pre-trial probation, you can have a general continuance, you can have the aformentioned CWOF, you can have a Filed w/o Change of Plea, etc. Think of the CWOF as the classic second chance - it is often only offered to those w/o a criminal record, or with an exceedingly minor record. You do need to make the admission to sufficient facts on the CWOF, and the reason for the confusion as to whether this is the functional equivalent of a guilty plea is that for some charges (OUI) or for the Feds for Immigration purposes, or for Housing - it is treated as such. You have to remember that in the civil realm, ASF is enough to deny certain services or benefits. For OUI, if you 24D CWOF on your first instance, the statute states it will be treated as a First OUI for purposes of charging you the second time around. This itself can lead to confusion. I try to remind people and sit through with them on the CWOF that there are collateral consequences, and I go through the list of possible consequences for each crime before they CWOF. Hopefully, your friend discussed this issue with an attorney prior to accepting the disposition, and going through the colloquy.

 

[terraformer]

That's not logical. If you can be tried for the original crime after the disposition it is not logically disposed of. It may be how the system works, the system may call it a "disposition" but if it can come back and bite you in the ass later by way of a trial, it is not gone nor it is disposed of by the common language meaning of "disposed of". Apparently I was wrong in believing that a CWOF was not a disposition in the eyes of the courts, I admit that. I made an assumption based on logical meaning of words. Though I would caution to question if the feds see CWOFs this way as §922(n) is under federal jurisdiction and it's not like that hasn't cause problems before... US v. Caron I made an assumption based on logical meaning of words. But I will not accept this is "logical" when it is far from it.

 

[terraformer]

And looking at §921(a)(14), my instinct to question how this would play out in federal court may be spot on.

(14) The term "indictment" includes an indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted.

ETA: Reminder for those following along at home, the definition of "a crime punishable by imprisonment for a term exceeding one year" is "by imprisonment for a term exceeding two years" if it's a misdemeanor.

 

[Smash05]

The CWOF has a term at which point it terminates in a dismissal, how is that not a disposition. You realize that even a guilty finding is not the end all and be all - you can have a guilty plea with probation, and if you mess up the probation you get a sentence imposed. How is that not a disposition?

 

[terraformer]

The CWOF has a term at which point it terminates in a dismissal, how is that not a disposition. You realize that even a guilty finding is not the end all and be all - you can have a guilty plea with probation, and if you mess up the probation you get a sentence imposed. How is that not a disposition?

Yes, but as I see it, the termination of the criminal liability is the dismissal, not the CWOF. And that is why the above quote from §921 is important. §921 cares about is of the charges which dictate the possible sentence. Charges = criminal liability. Post conviction = sentencing for already adjudicated findings of guilt. The sentencing, and subsequent parole, follow on from the charges. Until you have disposition of the former, you can't have the other (otherwise that would violate In re winship... ) so there is disposition of the charge, and then disposition of the sentence. Again, this is logically. I don't doubt that people in the system see it differently.

Sentencing is bounded by the max sentence allowed for in the statute. Sentence is disposed of upon the completion of probation or the completion of the max sentence, which ever comes first*. But that is disposition of sentence, not the charges. The law in §921 et seq; only cares for the conviction and max possible sentence, not for the sentence actually imposed or anything that comes after it.

If you think I am being absurd, read Logan v US (2007) and get a picture for the absurdity that ATF has argued-- AND WON-- in the past based on the definitions of §921.

ETA: * this assumes a suspended sentence on the probation side. Not dealing with complex mixes of probation and sentencing.

 

[milktree]

Sorry to put forth such a simple question here, but... what's the (maximum) penalty for driving to endanger? Would it be a disqualifier without the CWOF?

 

[Smash05]

Yes, but as I see it, the termination of the criminal liability is the dismissal, not the CWOF. And that is why the above quote from §921 is important. §921 cares about is of the charges which dictate the possible sentence. Charges = criminal liability. Post conviction = sentencing for already adjudicated findings of guilt. The sentencing, and subsequent parole, follow on from the charges. Until you have disposition of the former, you can't have the other (otherwise that would violate In re winship... ) so there is disposition of the charge, and then disposition of the sentence. Again, this is logically. I don't doubt that people in the system see it differently.

Sentencing is bounded by the max sentence allowed for in the statute. Sentence is disposed of upon the completion of probation or the completion of the max sentence, which ever comes first*. But that is disposition of sentence, not the charges. The law in §921 et seq; only cares for the conviction and max possible sentence, not for the sentence actually imposed or anything that comes after it.

If you think I am being absurd, read Logan v US (2007) and get a picture for the absurdity that ATF has argued-- AND WON-- in the past based on the definitions of §921.

ETA: * this assumes a suspended sentence on the probation side. Not dealing with complex mixes of probation and sentencing.

No - your not being absurd at all!!!! I think the differences are in the Terms of Art. In the sense that there are potential consequences that exist with a CWOF that are finalized with a guilty finding make for some hair pulling for the lay person, and I understand that. I work with this stuff regularly, so its a bit different for me. Just to be clear, anything short of a dismissal whether prior to or after arraignment can lead to issues.

 

[Smash05]

http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXIV/Chapter90/Section24


2 weeks to 2 years

 

[terraformer]

No - your not being absurd at all!!!! I think the differences are in the Terms of Art. In the sense that there are potential consequences that exist with a CWOF that are finalized with a guilty finding make for some hair pulling for the lay person, and I understand that. I work with this stuff regularly, so its a bit different for me. Just to be clear, anything short of a dismissal whether prior to or after arraignment can lead to issues.

Cool. I am particularly concerned with inter jurisdictional issues because federal law doesn't respect state law in the area of firearms law. What is OK in one, isn't in others. I don't know how the feds would view a CWOF.

 

[terraformer]

Sorry to put forth such a simple question here, but... what's the (maximum) penalty for driving to endanger? Would it be a disqualifier without the CWOF?

Yes, we stopped talking about the OPs problem a while ago...

 

[Smash05]

The Fed's are free to treat CWOF's differently than the state will.