Massachusetts OUI law prevents firearms purchase.

s&wchad said:

You might want to do a little research on the Lautenberg Amendment (Federal law for 22 years).

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What's a misdemeanor crime of domestic violence, got to do with a drunk driving offense???


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Muss Muggins said:

Total misunderstanding of how criminal law works. You cannot be held responsible for a felony 50 years later if you pleaded guilty to what was at the time a crime punishable by less than a year imprisonment.

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I dunno, this is Massachusetts we're talking about.

delcrossv said:

I'd suggest he contact Gun Owners of Hew Hampshire to see if they can set him up with an attorney or an organization to challenge this. If the sentence was less than a year at the time of his conviction, applying a later higher sentence would be "ex post facto" and unconstitutional.

Gun Owners of New Hampshire – Official News and Information from the NRA State Affiliate

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He was convicted 14 years ago. The law changed increasing the maximum penalty to 2.5 years in 1994. That was 25 years ago.

He doesn't have a case.

Bobby B. said:

One of my employees recently tried to purchase a pistol from a LGS in New Hampshire. (He is now a NH resident) He filled out the paperwork accurately, he has never been a felon or convicted of a domestic violence charge. He was declined due to a first offense OUI conviction when he was 22. He's now 36. I told him this must not be the reason, but further investigation on his part revealed that Mass. changed the sentence for first time OUI to make it punishable by up to 2.5 years in 1994. The NICS states that any offense punishable by more than a year makes a person ineligible.

Bottom line is if you have an OUI in mass you lose your 2A rights across the country forever. Mass. does not seal or annul records and the only way to fix this would be for the individual to try and reopen the case and get a different verdict or a pardon from the Governor. I feel for this guy, he was just a kid who couldn't afford a lawyer back then so he plead guilty not knowing that he would forever lose his rights. I have no sympathy for people who drink and drive, but I had no idea of the 2A implications.

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Been that way here for 25 years now. It's nothing new. While I'm sure there are folks who aren't keenly aware of it, every single criminal lawyer should be aware of it and advising their clients appropriately. In most cases, a typical first time OUI should, if handled properly, result in a negotiated "continued without a finding" unless the circumstances of the alleged OUI are such that the judge will not allow it or the alleged offender or his/her lawyer makes a terrible decision (like bringing a strong case to trial). Opps!

It's never been clear to me if the 1994 change in the MA OUI law considered, or didn't consider, the lifetime negative effect on a first offender's 2A rights. But this is MA after all.

I also have to be real honest here...

He exhibited sufficiently poor judgment to drive under the influence, and he did so knowing the potential consequences. He also recently lied on his Form 4473, which suggests his judgement hasn't improved. He's lucky he's not being prosecuted for that error in judgement.

I'm not very sympathetic for his plight given that I'm not a big fan of folks with criminally poor judgement running around with guns. We have 2A rights, but we also have an obligation to wield those 2A rights responsibly.

Potential big net if abused.
Does that law include narcotics, legally prescribed. How about drugs such as BP medications that potentially cause dizziness?
Heck, even insulin users.

How many people are out there operating motor vehicles with a couple Percocet in their system? Lots.

Just asking, not making any judgements.

Anyone know the wording? I’m not assuming this applies to only alcohol.

Muss Muggins said:

I’ve sat in thousands of plea hearings. A plea colloquy is pro forma. Certain marks must be hit, and judges hit them all. They for the most part read from a script, and after a certain time can do it from memory. I think I still can five years after retiring, and I wasn’t reading it, just listening.

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I was on the bench for 21 years. I was required to advise EVERY defendant as to the consequences of a guilty plea in a felony case ( and the case we’re talking about here would be a felony, at least under Wyoming law), specifically including the loss of right to own or possess a firearm, among others. I figure I did it about 4000 times. I could do it from memory by the end of my second day but always used a script anyway. Muss is right. That is a mark that does not get missed.

I have done a fair amount of criminal prosecution. Although I am assigned to our civil division now, I still cover some criminal stuff and otherwise assist the criminal division. As public records officer for our office, I spend a lot of time helping people understand what records we have that might serve the purpose they are trying accomplish; I also am civil advisor to most of the criminal justice entities in our county government.

One of the harsh realities I see on a regular basis is that most people are not informed consumers of the criminal justice system. They have appalling levels of ignorance and misconceptions from TV. Anyone who gets charged with a crime, of any type, needs to consult a lawyer and ask a lot of questions. This also applies to juvenile offenses - if a kid you know gets in trouble, they need a lawyer. The direct and collateral consequences of some exposures to the system can be immense, not to mention expensive. I agree with Muss - the odds are pretty good that the judge did the warnings and did them right. The odds are also really high that this employee did not pay attention when in court. I have seen this many times - there are times when an alternative disposition may mean you pay for the crime, but the worst consequences won't happen if you do what you're supposed to. Far too many people don't listen and are complacent.

The reality is, at least where I work - you will strictly comply or things will get a lot worse VERY FAST. If you have X days to do Y task - you will do that, or you will do jail time, lose the benefit of the bargain, and STILL be obligated to comply with the conditions. Screw it up again, and you will likely ride out the rest of the year (on a misdemeanor like DUI here) in jail. Stupid should hurt, and it will.

It is POSSIBLE that this person's only chance is to hire a lawyer and try to get the case un-done/re-done, because it was a plea entered without benefit of counsel. That's not something with which I am real familiar, and some of the law on that is state law; some Constitutional. I doubt he has any other remedy, and my guess is that the odds are not high and the financial cost staggering.

As far as DUI/OUI enforcement and penalties, understand this: Impaired driving is by far the single most common form of criminal homicide in this country. While I don't agree with how MA has structured their law, under Federalism they are free to do that. Most states have relatively weak laws - Washington still does, even after years of fighting to get a felony DUI law for the worst recidivists, it took 4 priors to get to a felony and with so many points the maximum sentence was used up. Now it's 3 - the 4th is a felony. Considering the number of offenders I have seen who have multiple priors, amazing blood alcohol levels, and not one bit of concern for anyone, I'm kind of a grouch about it. Also: Legal drugs can be impairing. Meds carry warnings for a reason; one of mine does and I do not take it until I am home for the night. Poly-drug offenders have been such a problem that the state crime lab is WAY behind on all blood tests - instead of a reasonable turnaround of maybe 15 days, we are at something like 10 months now.

It is pretty easy to avoid getting busted for DUI/OUI.

Beyond the specific legalities, let’s not lose sight of a simple fact:

Nowadays the majority of our fellow citizens live long, generally happy, and productive lives without ever owning a gun.

Not a choice I would ever make, but it is quite obviously not such a terribly onerous thing. If a felon is compelled to join that majority due to his own bad decision making, I’m not going to consider that cruel and unusual punishment or lose any sleep over it. Actions have consequences.

A friend of mine who was studying law enforcement got drunk and removed about $200 worth of Christmas ornaments from one house and directly put them on the house across the street. This was charged as theft in the jurisdiction and on his record. He never got an LEO interview. He has been a successful enough, but less than happy stockbroker these last 40 plus years. In the age of computers, there is no redemption for mere mortals. I think this case is harsh, but apparently it is what the good folks of the state want or those folks who thought it was a good idea and made it law would not be on their payroll.

TTSH said:

Been that way here for 25 years now. It's nothing new. While I'm sure there are folks who aren't keenly aware of it, every single criminal lawyer should be aware of it and advising their clients appropriately. In most cases, a typical first time OUI should, if handled properly, result in a negotiated "continued without a finding" unless the circumstances of the alleged OUI are such that the judge will not allow it or the alleged offender or his/her lawyer makes a terrible decision (like bringing a strong case to trial). Opps!

It's never been clear to me if the 1994 change in the MA OUI law considered, or didn't consider, the lifetime negative effect on a first offender's 2A rights. But this is MA after all.

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This. We in MA call this a misdefelony. Even though OUI is a misdemeanor, that 2.5 year sentence kills all of your gun rights. If you do plead out and get a CWOF, continued without a finding, to be dismissed usually after one year the local police chief still has the power to deny you a MA gun license by using the "unsuitable" cause. 1994 was not a good year for gun folks.

I’m not the strict law and order guy most on this forum seem to be. I don’t equate a OUI with murder, assault, armed robbery, etc. Yes, someone could have been killed but really?
And these laws are clearly no deterents.
Turnout gear on.

s&wchad said:

You might want to do a little research on the Lautenberg Amendment (Federal law for 22 years).

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The Lautenberg appeal decisions weren't really based on retroactivity. Appellate courts focused on domestic violence and its inherent danger to the public as the main reason for the gov't's compelling interest to restrict firearms rights.

Here's a question posed by a gov't lawyer during a Court of Appeals hearing on whether or not a felony DWI qualifies as a "violent felony . . ." One way that a felony crime qualified at the time was if it " . . . otherwise involves conduct that presents a serious potential risk of physical injury to another."

Why is DWI illegal?

ladder13 said:

I’m not the strict law and order guy most on this forum seem to be. I don’t equate a OUI with murder, assault, armed robbery, etc. Yes, someone could have been killed but really?
And these laws are clearly no deterents.
Turnout gear on.

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I never wanted this post to be a discussion on driving under the influence. I think we can all agree that OUI is a real problem. That being said, this individual lost his privileges to drive for 90 days yet lost his rights for life. Seems disproportionate. Maybe Mass should change their laws to make first offense OUI punishable by loss of license for life?

Bobby B. said:

I never wanted this post to be a discussion on driving under the influence. I think we can all agree that OUI is a real problem. That being said, this individual lost his privileges to drive for 90 days yet lost his rights for life. Seems disproportionate. Maybe Mass should change their laws to make first offense OUI punishable by loss of license for life?

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You're missing a key point about Massachusetts. MA moonbatty pols just love to pass ultra-restrictive laws with ridiculously oppressive maximum penalties while, as the same time, our ultra-liberal prosecutors and judges almost never impose anything close to the maximums... and in the case of mandatory penalties, they almost always find a way around them too.

So it shouldn't surprise anyone that we have a scary/crazy 2-1/2 year maximum sentence for a first time OUI even though it is never imposed. That's the Massachusetts way.

As I mentioned above, it's unclear to me if our MA pols even thought about the effect on an individual's lifetime 2A rights when they changed the penalty for OUI back in 1994. Your friend's problem is a Federal law that was never intended to be applied to a first time OUI offender... but then Massachusetts went crazy with its exaggerated (and never actually applied) maximum penalty and the rest is history.

TTSH said:

You're missing a key point about Massachusetts. MA moonbatty pols just love to pass ultra-restrictive laws with ridiculously oppressive maximum penalties while, as the same time, our ultra-liberal prosecutors and judges almost never impose anything close to the maximums... and in the case of mandatory penalties, they almost always find a way around them too.

So it shouldn't surprise anyone that we have a scary/crazy 2-1/2 year maximum sentence for a first time OUI even though it is never imposed. That's the Massachusetts way.

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I think there are many who have suffered at the hands of DUI drivers who would not find the potential sentence unduly harsh. When I came to the US in 1997 I was appalled at the general US attitude towards drunk driving. Back in the UK this crime had been largely stamped out compared to the 60s and 70s, bu t I arrive in Nevada to find DUI treated with a shrug.

The way the UK dealt with it was to suspend your license for a year for a first offense. Can't get to work without riding the bus or cadging lifts? Can't do the school run, it all falls to the wife? Not the state's problem, you knew the rules. Perhaps the spectre of a 2.5 year jail sentence and loss of gun rights is what's needed in this state to finally get the attitude towards DUI straightened out.

Now in hiding from the major industry of Nevada.....

Bobby B. said:

. . . That being said, this individual lost his privileges to drive for 90 days yet lost his rights for life. Seems disproportionate. Maybe Mass should change their laws to make first offense OUI punishable by loss of license for life?

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Seems disproportionate . . .

A learning experience for so many. When my kids were growing up I used to hammer them constantly on the consequences of their actions. Hard to make a kid think about how something they do today can come back to haunt them years down the road, but I was relentless, and lucky...neither did anything. My wife works in State Police recruiting. She always has a heart breaking story of someone's dreams to be a Trooper crushed because of a lapse of judgment years earlier. As for Mass law, I have a sneaking suspicion that the last thing they are going to do is relax a law on the books so people don't lose 2A rights. I'm surprised more states don't enact the possibility of a 366 day penalty for everything as a gun control measure.

I have read all the post here, a lot I agree with a lot I don't, I will "man up" and say I have had a DUI, about 25 years ago, Am I proud of it? NO. Do I drink and drive now days? NO. Do I think a person should lose their firearms rights over it ? HELL NO. DUI is serious and we all know that duh.....But ya know what is serious (in my point of view) and legal? Is cell phones. I right a Harley and right a LOT, fellow riders may understand my toughts, those don't dont ride may not. I guess I should made/make a new post on this, anyway that's my input. Regards "Big E"