Path to challenge DUI making you prohibited person

[appraiser]

The problem is that the Supreme Court in Heller said that gun rights only apply to law abiding citizens.

I guess we'll see in a few years how it plays out at the SCOUS level, assuming we have a bench of Constitutionalists and not activists

 

[Dennis in MA]

1. Having it overturned sounds simply, but is pricey and with no assured success

2. The DUI prohibition is Federal, Lifetime, and the feds do not recognize a state level restoration - only overturning the conviction or a MA pardon w/restoration of firearms rights. Yes, MA has pardons with "all but firearms right" restored. There is a huge difference between some towns considering you unsuitable and being federally prohibited for life.

I shouldn't have to fight for a god-given right. No one is trying to stuff troops into my bedroom. They shouldn't be withdrawing my gun rights without a massive amount of legal time and expense.

 

[Amputee Marksman]

The problem is that the Supreme Court in Heller said that gun rights only apply to law abiding citizens.

So if I'm in a hurry to get someplace because I'm running late and get a speeding ticket am I no longer a "law abiding citizen"?

Who decides where the line is on law abiding and not law abiding? You get my point. It is a slippery slope.

 

[appraiser]

So if I'm in a hurry to get someplace because I'm running late and get a speeding ticket am I no longer a "law abiding citizen"?

Who decides where the line is on law abiding and not law abiding? You get my point. It is a slippery slope.

Yes it is a slippery slope, and that is what the case we are discussing is trying to resolve.

 

[dixidawg]

So if I'm in a hurry to get someplace because I'm running late and get a speeding ticket am I no longer a "law abiding citizen"?

Who decides where the line is on law abiding and not law abiding? You get my point. It is a slippery slope.

Roberts asked that exact same question in the Rahimi case.

 

[In God We Trust]

Have they paid their debt to society or not?

Question - convicted, released murderer - can they be called for jury duty???? LOL. Serious question that makes me giggle.

Part of their “debt to society” is a lifetime prohibition from owning a gun.

It’s kind of a logic fallacy that once a guy gets out of jail they should be treated as if the crime never happened.

Maybe it should be, but that’s not how the system works.

 

[rali]

I'd be up for him being release as long as he had to listen to her "singing" for 5 min first.

We are a civilized nation and have laws preventing cruel and unusual punishment.

 

[Dennis in MA]

So if I'm in a hurry to get someplace because I'm running late and get a speeding ticket am I no longer a "law abiding citizen"?

Who decides where the line is on law abiding and not law abiding? You get my point. It is a slippery slope.

Is your name Rahimi by any chance?

Part of their “debt to society” is a lifetime prohibition from owning a gun.

It’s kind of a logic fallacy that once a guy gets out of jail they should be treated as if the crime never happened.

Maybe it should be, but that’s not how the system works.

Mmmm. What other "rights" are restricted? Can we quarter troops in their house? Search and seize at any time? Restrict their right to stand on their soapbox? No voting rights???

I'm not saying that I like it, per se, but I'm thinking that if something is a Bill of Rights right, it's for everyone.

We ARE headed there. Violent vs. non-violent crime is being considered. But this could be viewed in the same light as "separate but equal" water fountains. Perhaps we get to a point where gun rights are restricted as PART of the sentence. So you get 20 years hard sitting around, 5 years probation and 10 additional years out of prison without gun rights. I'm just spitballing.

Aside - some old Kevin Bacon movie was on TV over the weekend. He's some killer in Bahstin and his defense lawyer is. . . Gary Oldman. Well, I guess he was Gary ReallyYoungMan. It was a terrible movie in that 80's vibe. He was unrecognizable. Had I not seen it was him on the channel comments, I'd have never pegged it as him.

 

[In God We Trust]

Is your name Rahimi by any chance?



Mmmm. What other "rights" are restricted? Can we quarter troops in their house? Search and seize at any time? Restrict their right to stand on their soapbox? No voting rights???

I'm not saying that I like it, per se, but I'm thinking that if something is a Bill of Rights right, it's for everyone.

We ARE headed there. Violent vs. non-violent crime is being considered. But this could be viewed in the same light as "separate but equal" water fountains. Perhaps we get to a point where gun rights are restricted as PART of the sentence. So you get 20 years hard sitting around, 5 years probation and 10 additional years out of prison without gun rights. I'm just spitballing.

Aside - some old Kevin Bacon movie was on TV over the weekend. He's some killer in Bahstin and his defense lawyer is. . . Gary Oldman. Well, I guess he was Gary ReallyYoungMan. It was a terrible movie in that 80's vibe. He was unrecognizable. Had I not seen it was him on the channel comments, I'd have never pegged it as him.

Im pretty sure in some states felons lose the right to vote. The state decides what rights you lose and then it’s up to the courts to rule if it’s unconstitutional. It bullshiite, but it’s the country we live in.

There is probably a bit of “cuz gunz” thrown in there also.

 

[aphextwin11]

MA makes DUI carry up to 2.5yrs in jail so it is a permanent disqualifier from possession of firearms. Now we have a ruling in PA against this.

Federal Judge Rules For Plaintiff in FPC-Supported Lawsuit that Challenged Lifetime Gun Ban for Non-Violent Misdemeanor Conviction

Today, Firearms Policy Coalition (FPC) announced that Judge John Milton Younge of the Eastern District of Pennsylvania has granted summary judgment for the plaintiff in Williams v. Garland, which challenged the federal Gun Control Act’s lifetime ban on the exercise of Second Amendment rights due...

www.firearmspolicy.org

Next is to challenge this in the 1st circuit. Chip away at MA anti-gun outcomes…

This is definitely better than having it go the other way, however it will still be a long time before this (or dangerousness re: rahimi) potentially takes any tangible effect in MA.

Best case scenario is that SJC delineates dangerous vs. Not dangerous in rahimi, and spells it out further by granting certiorari to the Bryan Range case pending tomorrow's review session. Then a sympathetic plaintiff with standing would have to challenge the rule for 1st OUI in MA conviction bestowing pp status.

The other less desirable outcome, is that the SJC does not grant cert or otherwise refuses to hear range, someone challenges the 1st offense OUI pp status in the 1CA based on Rahimi because the district court judge refuses to apply bruen/rahimi properly. The 1CA sides with the govt because they cant define what a woman is. Theres a circuit split 1CA vs this ruling and the SJC *maybe* looks at it years from now.

Not trying to diminish this win because this is obviously a great thing, however I think folks who this affects have to temper their expectations and know it will still be potentially years until they find any relief.

 

[SumRando]

In practice it can be.

Suppose you are charged with first offense DUI and feel you are innocent. Your attorney explains the two options:

1. Take the CWOF, get hammered on insurance for 6 years and do not have a conviction on your record. Even so, a DUI CWOF is counted as a predicate offense for a future DUI, and as a conviction for commercial driving license purposes.
   
   
2. Refresh the retainer by a few thousand, take it to trial and become a a federally PP for life if you lose. And no, the state restoration of gun rights will not be recognized by the feds.

So yes, one can in practice become a PP for challenging a DUI.

There's a big case in Penn, Williams, where they restored his gun rights. It isnt for oui but it is for non violent misdemeanors, similiar to the pending scotus Range case. I came to look for discussion about it and possible implications for the massachussetts exception (the only state where a first offense conviction makes you a pp for life).

 

[nstassel]

There's a big case in Penn, Williams, where they restored his gun rights. It isnt for oui but it is for non violent misdemeanors, similiar to the pending scotus Range case. I came to look for discussion about it and possible implications for the massachussetts exception (the only state where a first offense conviction makes you a pp for life).

Did you actually read any of the articles or the case this entire thread is about? Williams is a DUI based case.

 

[pastera]

The problem is that the Supreme Court in Heller said that gun rights only apply to law abiding citizens.

This not actually true
The phrase "law-abiding" occurs only 3 times in the actual opinion.
1 - "We therefore read Miller to say only those weapons not typically possessed by law-abiding citizens for lawful purposes"
This speaks not to who can possess but what can be possessed.

2 - " the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens."
This says nothing about those convicted of crimes since it was not part of the presented case (Heller was objectively law-abiding)

3 - "it surely elevates above all other interests the right of the law-abiding, responsible citizens..."
This is in opposition to Breyer's dissent calling for a continuance of interest balancing for 2nd amendment cases.

All of this is actually explained where Scalia says "And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us."
Scalia is declaring that lower courts cannot read anything into the "law-abiding, responsible" qualifiers other than if a person is describable by them, they enjoy unqualified access to all covered classes of arms.
Heller says nothing about those that are not Law-abiding other than it must be judged in light of historical regulation contemporary with the adoption of the bill of rights.

 

[pastera]

Part of their “debt to society” is a lifetime prohibition from owning a gun.

It’s kind of a logic fallacy that once a guy gets out of jail they should be treated as if the crime never happened.

Maybe it should be, but that’s not how the system works.

And what level of permanent debt rises to "cruel and unusual" is what needs to be adjudicated in light of Heller and Bruen.
Historically, crimes like rape and murder were punished by a complete removal of all rights (capital punishment)
Lesser crimes would restore rights upon release from incarceration.

So there is a historical tradition of permanent removal of rights for at least heinous violence therefore some prohibitions are constitutional - the question will be where the line is drawn and if there is a continuum where lesser violence is punished by a temporary term of prohibitions ended by a defined period of lawfullness (likely)

 

[Rob Boudrie]

So if I'm in a hurry to get someplace because I'm running late and get a speeding ticket am I no longer a "law abiding citizen"?

Who decides where the line is on law abiding and not law abiding? You get my point. It is a slippery slope.

At present, the maximum sentence provided under state law combined with the felon definition in 18USC922 decide.

 

[Rob Boudrie]

Did you actually read any of the articles or the case this entire thread is about? Williams is a DUI based case.

Actually, the legal principle is identical to MA but, for PA OUIs, only kicks in after a 2nd conviction. This is the same misdafelony imposed disability first time OUI convicts face in MA.

From the article:

Because he had a previous DUI non-conviction in 2001, that was later expunged, the 2005 conviction qualified as a first-degree misdemeanor, which carries a maximum sentence of up to five years’ imprisonment.

But, there is an interesting twist, and a bit of confused:

- A non-conviction cannot be expunged. I suspect the author meant "a conviction that was later expunged".

So, assuming the following sequence:

- Conviction for first offense
- Conviction for second offense
- First offense conviction expunged

It should be possible for the second conviction to be re-opened and re-disposed of, since the person now has a second offense conviction but no first offense. Since it is "Expunged" it should not exist in any record (yeah, right....) so the conviction for the second offense is as erroneous as if someone who never had a record at any time had an OUI conviction recorded as a second offense. Unless the courts main that expunged does not really mean expunged.

Any lawyer care to comment on this logic?

 

[42!]

Actually, the legal principle is identical to MA but, for PA OUIs, only kicks in after a 2nd conviction. This is the same misdafelony imposed disability first time OUI convicts face in MA.

From the article:



But, there is an interesting twist, and a bit of confused:

- A non-conviction cannot be expunged. I suspect the author meant "a conviction that was later expunged".

So, assuming the following sequence:

- Conviction for first offense
- Conviction for second offense
- First offense conviction expunged

It should be possible for the second conviction to be re-opened and re-disposed of, since the person now has a second offense conviction but no first offense. Since it is "Expunged" it should not exist in any record (yeah, right....) so the conviction for the second offense is as erroneous as if someone who never had a record at any time had an OUI conviction recorded as a second offense. Unless the courts main that expunged does not really mean expunged.

Any lawyer care to comment on this logic?

Maybe it was something like a CWOF, that would be a non-conviction but can still have legal ramifications.

 

[kalash]

I do agree with the DUI problem on a first offence, but at least you get a trial and can go back and have it overturned.

The overturning is not a slam-dunk guarantee though. I know someone who lost his case and remains a prohibited person (and before anyone asks, no, the attorney was NOT @nstassel )

 

[42!]

The overturning is not a slam-dunk guarantee though. I know someone who lost his case and remains a prohibited person (and before anyone asks, no, the attorney was NOT @nstassel )

Just curious, were there other contributing factors, injuries, deaths, other non-DUI incidents?

 

[appraiser]

you would have to have had really bad (ineffective) representation, a Judge who found out you were banging his wife and daughter along with leaving an upper decker, and or a slew of added charges in order not to get a C.W.O.F. from a bench trial in front of a Judge in MA on a first time DWI.

How someone was so completely screwed that they ended up with a jury trial on a first time DWI... again bad representation or a stack of additional charges is beyond me.

There are only so many ways you can get a second bite of the apple..... appeal a bad ruling on a motion by the Bench, someone recanted their testimony or was caught lying about their testimony after the fact, you had Annie Dookhan as the lab tech that handed the evidence ( a couple of people I know had their cases tossed over that one) or you can prove you had a incompetent Attorney representing you.

Even IF you can find a valid reason to have the verdict set aside (Annie Dookhan, bad lawyer, etc) at that point you are going to be looking at starting the process from square 1, and you have to hope that the Commonwealth decides not to prosecute, or you have something better to defend yourself with.

Just because you get a seond bite doesn't mean it is a slam dunk you will get a walk, you could end up in a worse position than you were before.

 

[nstassel]

you would have to have had really bad (ineffective) representation, a Judge who found out you were banging his wife and daughter along with leaving an upper decker, and or a slew of added charges in order not to get a C.W.O.F. from a bench trial in front of a Judge in MA on a first time DWI.

It has been impermissible for many years to get a continuance without a finding after a bench trial in an adult case. That bit ended officially with de novo.

COMMONWEALTH vs. SHERRI A. NORRELL

COMMONWEALTH vs. SHERRI A. NORRELL - 423 Mass. 725

law.justia.com

 

[appraiser]

@nstassel

I bow to your superior knowledge, but if you could you enlighten me as to how people get CWOF's these days

Pre trial motions?

 

[Rob Boudrie]

you would have to have had really bad (ineffective) representation, a Judge who found out you were banging his wife and daughter along with leaving an upper decker, and or a slew of added charges in order not to get a C.W.O.F. from a bench trial in front of a Judge in MA on a first time DWI.

Ae Atty ntassel noted, you have to give up your ability to defend yourself to get a CWOF. The goal of the deal is to coerce pleas that put a win on the prosecutors scorecard (CWOFs count as wins) without consuming court resources.

 

[Rob Boudrie]

@nstassel

I bow to your superior knowledge, but if you could you enlighten me as to how people get CWOF's these days

Pre trial motions?

Plea deal negotiated with prosecutor and approved by the court. CWOF + 24D alcohol diversion program is the standard deal for a first offense no injury/damage OUI in MA. The defendant agrees to ASF (admit to sufficient facts for a conviction); the prosecutor indicates no objection to a CWOF, and the pseudo-conviction is recorded.

Even though you are convinced you are not guilty, people who think that are regularly convicted. If you don't take the deal and lose, you will be severely punished for bothering the state with a trial. There are plenty of people doing hard time in real prisons because they did not take a "Felony but no jail/prison time" deal, or doing live because they declined a 10 or 20.

 

[appraiser]

That is how I understood it to be, I guess using the word trial was inaccurate.

I know you have to articulate that there is enough evidence to result in a guilty finding to get one, and if you screw up the terms of the CWOF you can potentially have the CWOF changed to a "responsible" by the court and sentence imposed

At the least it is a probation violation and you are going to go visit the Judge again

 

[Rob Boudrie]

That is how I understood it to be, I guess using the word trial was inaccurate.

I know you have to articulate that there is enough evidence to result in a guilty finding to get one, and if you screw up the terms of the CWOF you can potentially have the CWOF changed to a "responsible" by the court and sentence imposed

At the least it is a probation violation and you are going to go visit the Judge again

Guilty. Responsible is the term used for civil infraction like minor speeding or expired registration sticker.

 

[MAGA99]

1. Having it overturned sounds simply, but is pricey and with no assured success

2. The DUI prohibition is Federal, Lifetime, and the feds do not recognize a state level restoration - only overturning the conviction or a MA pardon w/restoration of firearms rights. Yes, MA has pardons with "all but firearms right" restored. There is a huge difference between some towns considering you unsuitable and being federally prohibited for life.

DUI is a federal PP?!?!! What??

I may or may not know a person or two whom used to have vehicle breathalyzers…..

 

[aphextwin11]

DUI is a federal PP?!?!! What??

I may or may not know a person or two whom used to have vehicle breathalyzers…..

Only if it was in MA and the conviction was recieved after 1994, 1st offense. Not that I sympathize with drunk driving, but it's extremely heavy handed. To my knowledge it's the only state in the country where that is the case. It makes you a federal PP for life no matter what state you move to. 50 years later you move to Alaska? You are still a federal pp.

Oddly enough, you can still get an LTC in MA afterwards and posess legally according to state (not federal) law.