A driver’s license is not the only license at stake when it comes to DUI in Massachusetts.
In response to numerous inquiries from DUI defendants and even some Mass. DUI Attorneys regarding the effect of a Massachusetts DUI conviction on an individual’s ability to hold a Massachusetts License to Carry Firearms, I thought that I would post this article regarding operating under the influence and firearms licensing in Massachusetts. I want to thank Massachusetts Firearms Lawyer Jesse C. Cohen for his thoughts and input on this important legal issue.
In general, residents of Massachusetts may own or possess a firearm if they have been issued either a Class A or Class B license to carry (“LTC” or “license”) under G. L. c. 140, § 131, or a firearm identification card under G. L. c. 140, § 129B. A license to carry allows possession of the firearm outside the licensee’s home, while to lawfully possess a firearm in one’s home a firearm identification card is required.
Under G. L. c. 140, § 131(d), a person may apply to the licensing authority of a city or town, or to the colonel of the state police, for a license to carry and the license may issue if, among other things, “it appears that the applicant is a suitable person to be issued such license, and that the applicant has good reason to fear injury to his person or property, or for any other reason,” unless the applicant is disqualified for the reasons listed in G. L. c. 140, § 131.
A firearms license may not be issued to a person who has been convicted of a felony, or a misdemeanor punishable by imprisonment for more than two years.
On May 27, 1994, the penalty for aMass. first offense DUI was increased from 2 years to 2.5 years. This means that if the OUI first offense occurred prior to May 27, 1994, it is not an automatic statutory disqualifier for firearms licensing. If the first offense operating under the influence incident occurred after May 27, 1994, it may be an automatic firearms license disqualifier, depending on the outcome of the case.
Many first offense drunk driving charges in Massachusetts are resolved by an admission to sufficient facts followed by a continuance without a finding (CWOF) and eventually a dismissal. There is some dispute as to whether such resolutions are considered “convictions” for firearms licensing purposes.
However, for the purposes of Massachusetts Firearms Licensing, G.L. c. 140 § 121 expressly defines the term “conviction” as “a finding or verdict of guilt or a plea of guilty, whether or not final sentence is imposed.” Some firearms licensing authorities mistakenly believe that G.L. c. 278 §18 transforms CWOFS into guilty pleas, because G.L. c. 278 §18 states that a defendant may tender “an admission of facts sufficient for finding of guilt,” and “such admission shall be deemed a tender of a plea of guilty for purposes of the procedures set forth in this section.” I believe that they are misinterpreting § 18, because it says that admissions are treated as guilty pleas “for the purposes of the procedures…” § 18 simply states that judges must follow the same procedures for accepting admissions as those required for accepting guilty pleas. Licensing authorities who believe that § 18 transforms CWOFs to guilty pleas are ignoring the plain language of the statute which says “for the purposes of the procedures set forth in this section.” Such limiting language must be treated as purposeful and not superfluous. Indeed, admissions to sufficient facts are, technically speaking, “not pleas at all.” Therefore, I believe that a first offense DUI which is resolved by an admission to sufficient facts, a continuance without a finding (CWOF), and ultimately a dismissal is not an automatic statutory disqualifier for firearms license, because it is not a “conviction” within the meaning of G.L. c. 140 § 121, the Mass. gun law.
The aforementioned position is supported by Burns v. Commonwealth, 430 Mass. 444, 449-451 (1999), where a Mass. State Police trial board’s discipline based on a State Trooper’s admission to sufficient facts and resulting CWOF on the underlying charges was reversed as legal error.
It is important to note that just because a First Offense drunk driving arrest and resulting court action may not be an automatic statutory disqualifier, Police Chiefs can use someone’s OUI arrest against them when deciding whether an individual is a “suitable person” to hold a Mass. Firearms License.
A LTC “may be revoked or suspended by the licensing authority if it appears that the holder is no longer a suitable person to possess such license,” or upon the occurrence of an event that would have originally disqualified the applicant from being issued a license.” This means that a Police Chief can hold even a first offense DUI arrest against a license holder or applicant, for suitability purposes.
The Massachusetts Criminal History Systems Board (CHSB) electronically and automatically notifies Police Chiefs and Firearms Licensing Authorities whenever a license holder is arraigned on any criminal charges anywhere in Massachusetts, so that the Police Chief or Firearms Licensing Officer can review the license holder’s situation and decide whether or not to suspend or revoke the License to Carry Firearms or FID card. Criminal records are also thoroughly reviewed whenever someone applies for a new license or they renew an existing license.
Individuals convicted of DUI 2nd offense or subsequent offense DUI charges (3rd, 4th, 5th, etc…) are automatically prohibited from holding Massachusetts Firearms Licenses, because the potential sentence for any DUI, but a first offense, is 2.5 years incarceration or more.
A Mass. Police Chief has absolutely no discretion to issue a license under such circumstances and the only way to obtain a Massachusetts Firearms License is to have the conviction vacated in court, to receive an unconditional pardon wherein firearms rights are expressly restored, or to obtain relief from the Massachusetts Firearms License Review Board (FLRB).
Individuals with disqualifying Mass. OUI convictions may have their ineligibility waived after 5 years from termination of parole, probation or conviction or adjudication, whichever is most recent only for the issuance of a Firearms Identification Card.
Incidentally, in the landmark case of District of Columbia v. Heller, the United Sates Supreme Court held that the second amendment to the United State’s Constitution protects an individual’s right to possess a firearm for self-defense within his or her home. In McDonald v. Chicago, the Supreme Court rightfully determined that the individual 2nd Amendment right to “keep and bear arms” applies to the states through the Due Process Clause of the 14th Amendment. It is currently unknown what impact these landmark cases will have on Massachusetts Firearms Licensing.
Contact Attorney Brian E. Simoneau for more information regarding this important legal issue.
