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  • Writer's pictureAttorney Neil Tassel

Exercising Second Amendment rights after an OUI

Updated: Jul 14, 2023

Lately I've helped with many situations in which people came to me to figure out their options for legal possession of a firearm after being convicted of operating under the influence in Massachusetts. A review of my recent work in one such case is found here. While it is a misdemeanor, and on it's face appears to not create a "felony" conviction, in fact an OUI conviction in Massachusetts does create a bar to possess a firearm under federal law. I recently observed a lawyer go out of their way to convince a judge to impose a guilty finding on her client because he was going into the Navy and didn't want to be placed on probation with a continuance without a finding. She caused this young man to lose-forever-his right to possess a firearm. It was a horrible mistake to see occur.

First, why is it a problem? In Massachusetts, first offense OUI carries a maximum of 2 1/2 years in the house of correction. While people rarely receive that sentence (if indeed they ever have) federal law makes any conviction which is a state misdemeanor that carries more than two years potential incarceration a "felony" for purposes of barring possession of a firearm. Many other misdemeanors in Massachusetts create a similar bar by calling for a maximum punishment of more than 2 years such as malicious destruction of property, or assault and battery. So a conviction for those offenses prevents possession of a firearm in any state. Moving to New Hampshire won't fix the issue.

This only applies to convictions. Any other disposition will not create the bar. A continuation without a finding is not a conviction, nor is a dismissal on court costs, pretrial probation with a dismissal, or filing without a change of plea. Often, once I examine the records it turns out the record (the CORI or NICS) is incorrect and a person does not have a conviction and the information was entered incorrectly into the state or federal database. These issues are comparatively easy to fix. Corresponding with the Commissioner of Probation or the FBI with the complete documents can often resolve the issue. Sometimes a court order is required, such as when old records have conflicting information. I have seen dispositions of "probation" or a suspended sentence followed by a dismissal. This is conflicting since these dispositions are associated with guilty findings but the dismissal is not. Then a motion is necessary to convince the Court that the conflicting information should be weighed in favor of the defendant due to a legal rule known as the "doctrine of lenity".

Another scenario I have seen is old handwritten cursive records that make "D" (for dismissal) look like a "G" (for guilty) and they are mistakenly entered into the electronic files (I have attached a copy of one such old docket). A motion to the Court to fix or clarify the old records is then in order, and I have done this with good results.

If a OUI case is really a conviction, such a guilty plea or verdict after a trial, then things are more complicated. There was an option until fairly recently to have the state restore your right to possess a firearm. The Firearm License Review Board was created in 2005 to allow the Commonwealth to review the circumstances of a case and decide whether to allow an individual to apply for a license to carry despite certain misdemeanor convictions. That body has been effectively shut down since 2018 at the insistence of the BATF, who asserts that the state lacks the authority to restore the individual rights for reasons outside the scope of this blog for today. Similarly, five years after the successful completion of probation an individual could obtain a firearm identification card but that restoration of rights is no longer made available despite remaining on the books. [Note: due to the hard work of colleague Jason Guida and Comm2A, the FLRB was forced back into hearing restoration cases, and because of numerous court victories on the restoration of FID cases by me and other Second Amendment lawyers that avenue has also been reopened. However, despite these important wins, restoration of rights does not relieve the assertion by the ATF that the individual is still a prohibited person and therefore can not purchase a firearm from a dealer and is still regarded as a "felon" in possession of a firearm by the Federal government.]

So what can be done? A motion to vacate the conviction must be filed if good grounds exist. I have had success making the argument that it was ineffective assistance of counsel to fail to properly advise a defendant that they would lose their Second Amendment rights. In order to make this argument it is probably required that the ownership of firearms was already an important concern of the defendant and this was discussed with the attorney. Other areas to look for a defective conviction are errors in the process of the plea or trial. I have been able to remove the convictions that were preventing firearm ownership for a number of clients but it is not easy. A number of their experiences are detailed in my client review page here. Courts place a great deal of weight in the finality of a conviction and they do not want to reopen a case simply because someone has a change of heart.

What is in store for the future? Cases are working their way through the courts that are finding that a non-violent misdemeanor should not be justification to lose a person's Second Amendment rights forever. If these cases ultimately make it to the Supreme Court it may be that there will be a change for those convicted in Massachusetts of OUI and other so called "misde-felonies". But for the present, you have the options as I've outlined here.

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