Massachusetts OUI law prevents firearms purchase.

Bobby B. · Jul 11, 2019

All,

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 offence 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 reveled 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 offence punishable by more than a year makes a person ineligible.

Bottom line is if you have a 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.

Road Rat · Jul 11, 2019

Massachusetts - one of the Original Colonies that fought for FREEDOM.

NOW, they are worse than the King of England in being totally against any citizen having any freedoms.

Time for Revolution Part Deux ??

THERE........... fixed it.

Bobby B. · Jul 11, 2019

Actually, Paul Revere rode to Fort William and Mary in N.H. to warn the locals in Portsmouth and the surrounding area that the British were about to reinforce the fort. 400 New Hampshire men stormed the fort and removed the British flag that flew there. They also made off with cannons and gun power. If your from NH you know this is the first engagement of the American Revolution and thus the start. Sorry to get off topic, but we’re proud of the Live Free or Die state!

schutzen-jager · Jul 11, 2019

can't he get an expungement under MA. law ? -

fmflorida · Jul 11, 2019

Bobby B. said:
All,

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 offence 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 reveled 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 offence punishable by more than a year makes a person ineligible.

Bottom line is if you have a 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.

Im not a lawyer, however is it stated law regarding NICS that any conviction/sentence over 1 year results in termination of rights?

If that is just a "departmental policy" and not a written law then theoretically he can appeal it in a court.

My understanding of law is any felony conviction or conviction of domestic violence results in right termination. Not DUI or anything of that sort. No matter what the sentence may be.

Please correct me if Im wrong.

Muss Muggins · Jul 11, 2019

fmflorida said:
Im not a lawyer, however is it stated law regarding NICS that any conviction/sentence over 1 year results in termination of rights?

If that is just a "departmental policy" and not a written law then theoretically he can appeal it in a court.

My understanding of law is any felony conviction or conviction of domestic violence results in right termination. Not DUI or anything of that sort. No matter what the sentence may be.

Please correct me if Im wrong.

Here ya’ go. Because of variances among the states over what constitutes a felony, the Yankee Gov’t has long considered a felony to be defined as “punishable by a term of imprisonment of more than one year . . . “

Form 4473 said:
c. Have you ever been convicted in any court of a felony, or any other crime for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation? (See Instructions for Question 11.c.)

Edit: The OP’s employee provided a materially false statement on the 4473 by answering “No” to the above question, a felony . . .

delcrossv · Jul 11, 2019

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

fmflorida · Jul 11, 2019

Muss Muggins said:
Here ya’ go. Because of variances among the states over what constitutes a felony, the Yankee Gov’t has long considered a felony to be defined as “punishable by a term of imprisonment of more than one year . . . “

You learn something new everyday, thanks for educating me.

fmflorida · Jul 11, 2019

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

I dont think this would fall under ex post facto because the law was changed in 1994.

Hes 36 now.....case was when he was 22 making that 2005 or so.

So legally speaking he could have been sentenced to the full 2.5 years.

Fishinfool · Jul 11, 2019

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

I would suggest the same thing, but should note, that if you do the math provided by the OP, the change in the DUI law that carried a penalty of over a year happened before his conviction, and was not applied proactively. Situations like this is why you always retain a lawyer if arrested on a criminal charge, and keep your mouth shut...

Larry

Bobby B. · Jul 11, 2019

It’s my understanding that in Massachusetts you need a very good lawyer. That lawyer will advise you of the consequences of pleading guilty and suggest a court date. There, if you pay enough for a good lawyer, you have a good chance of receiving a case without finding. You still lose your license, take a alcohol awareness class etc. But you are not guilty of a crime punishable by 2.5 years.

Unfortunately it looks as though he is up the proverbial creek. Btw he lost his license for 90 days, that was his sentence.

Muss Muggins · Jul 11, 2019

Bobby B. said:
. . . 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.

I too feel bad for him, but I will bet the house that the judge who took his guilty plea notified your employee that his rights to vote, possess a firearm, and/or hold public office were potentially negatively and permanently impacted by his guilty plea. Depending on where he lives, he may have been voting illegally for the last 14 years. Those laws vary widely by state. I can understand not being able to afford an attorney. I cannot understand not listening to and internalizing everything a judge told me during a criminal proceeding . . .

delcrossv · Jul 11, 2019

Muss Muggins said:
I too feel bad for him, but I will bet the house that the judge who took his guilty plea notified your employee that his rights to vote, possess a firearm, and/or hold public office were potentially negatively and permanently impacted by his guilty plea. . . .

I wouldn't bet the house on that. Judges statements can vary widely and with a crowded docket those admonitions may very likely been left out.

Muss Muggins · Jul 11, 2019

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.

delcrossv said:
I wouldn't bet the house on that. Judges statements can vary widely and with a crowded docket those admonitions may very likely been left out.

ParadiseRoad · Jul 11, 2019

...Muss is right about 11c Form 4473...

...here is the fine print from the instruction section:

EXCEPTION: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if:

(1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights (the right to vote, sit on a jury, and hold public office) taken away and later restored, AND

(2) the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms. Persons subject to this exception, or who receive relief from disabilities under 18 U.S.C. 925(c), should answer "no" to the applicable question.

...click below for a pdf copy for reference...

https://www.atf.gov/file/61446/download

trooper2899 · Jul 11, 2019

writ of coram nobis (sentencing error) could cost minimum 2K ? Also "inadequate council", Im not a lawyer but have done hundreds of background investigations on political appointees Judges etc....(rich and famous) "Indecent Exposure" for peeing in public place while a college student etc. reduced to "disorderly conduct" (Peeing in Public place is NOT indecent exposure) enabling individual to get federal and state appointment, I personally have advised applicants to use Coram Nobis for "over charged convictions" especially if its blocking an important right or employment, if U want to pay the freight the conviction can be expunged or amended.

Muss Muggins · Jul 11, 2019

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. That is not the case here . . .

Squarebutt said:
He became a federally Prohibited Person thanks to our probably unconstitutional law. The one-party legislature (guess which party) raised the sentencing laws on lots of minor offenses, and the law is retroactive. Old guys that pleaded nolo after an OUI or a bar scuffle decades ago suddenly weren't able to renew their hunting licenses or own guns, regardless if they never got into any further trouble for the next 50 years.
Be careful who you vote for and keep an eye on your state legislatures.

s&wchad · Jul 11, 2019

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.

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

Faulkner · Jul 11, 2019

DUI/OUI/DWI is a totally avoidable offense. Just saying.

Bullet Bob · Jul 11, 2019

Operating Under the Influence? Am I right? Do I get a prize?

We must keep it simple here in the Tar Heel state for rednecks such as myself.

Sounds like something surgeons could be guilty of.

Massachusetts OUI law prevents firearms purchase.

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