DUIs and Gun Possession

In recent years, some have recommended banning gun possession by persons with one or more DUI convictions.[1]  Such recommendations implicitly assume that current federal and state laws largely fail to impose such a ban.[2]  This assumption, however, appears to be incorrect.  In the District of Columbia and every state (except perhaps one), either federal or state law explicitly or implicitly bars gun possession by persons with multiple DUIs.[3]

Although federal law does not explicitly bar DUI offenders from possessing guns, the Gun Control Act of 1968 does impose a “felon gun ban,” which prohibits gun possession by anyone “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . .”[4]  By statute, the italicized text excludes “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.”[5]  Hence, if a state deems a DUI offense to be either a felony punishable by over a year’s imprisonment or a misdemeanor punishable by over two years in prison,[6] that DUI offense will trigger the federal felon gun ban.

Only in Massachusetts do the penalties for first-time DUI offenders imply disarmament under federal law.  A first DUI in the Bay State is a misdemeanor.[7]  However, it carries a possible penalty of “imprisonment for not more than two and one-half years . . . .”[8]  Consequently, federal law bans gun ownership by anyone convicted of even one DUI in Massachusetts.

Under most other states’ laws, the federal felon gun ban only affects persons with multiple DUI’s.  In four states – Connecticut,[9] Indiana,[10] New York,[11] and Oklahoma[12] – a second DUI triggers this ban.  In the following 23 states, a third DUI required:

Alaska[13]

Arizona[14]

Delaware[15]

Florida[16]

Idaho[17]

Illinois[18]

Iowa[19]

Louisiana[20]

Maine[21]

Maryland[22]

Michigan[23]

Mississippi[24]

Missouri[25]

Nevada[26]

Oregon[27]

Rhode Island[28]

South Carolina[29]

South Dakota[30]

Texas[31]

Utah[32]

Vermont[33]

Virginia[34]

West Virginia[35]

 

In these 18 states, the federal felon gun ban takes effect on the fourth DUI:

Alabama[36]

Arkansas[37]

California[38]

Colorado[39]

Georgia[40]

Hawaii[41]

Kentucky[42]

Minnesota[43]

Montana[44]

Nebraska[45]

New Hampshire[46]

New Mexico[47]

North Carolina[48]

North Dakota[49]

Ohio[50]

Tennessee[51]

Wisconsin[52]

Wyoming[53]

In Washington alone, a fifth DUI is required for federal law to bar gun possession.[54]

In Kansas,[55] New Jersey,[56] Pennsylvania,[57] and the District of Columbia,[58] DUI penalties are light enough to avoid triggering the federal felon gun ban.  However, the laws of three of these jurisdictions clearly prohibit gun possession by persons with multiple DUIs.  Such a ban applies to two-time DUI offenders in D.C.,[59] and to three-time offenders in Kansas[60] and Pennsylvania.[61]

In New Jersey, it is unclear whether state law bars gun possession by repeat DUI offenders.  New Jersey law does bar possession of handguns, rifles, and shotguns by any “any person who is presently an habitual drunkard . . . .”[62]  Although a single DUI conviction does not, by itself, satisfy this definition,[63] a history of multiple DUI convictions might do so.  The case most closely on point, State v. Freysinger, stated that someone “who has been found guilty of driving while under the influence of alcoholic beverages on two occasions and has twice pled guilty to the refusal to submit to a breathalyzer test, all within a thirteen year period, might be reasonably described as an habitual drunkard.”[64]  Yet although this language seemingly suggests that “habitual drunkard” encompasses any individual with multiple DUIs, the Freysinger court also supported its habitual drunkenness finding by citing on “defendant’s testimony . . . that . . . at least two times a week, [he] consumed a six pack of beer over the course of an evening,” and “defendant’s admission at the hearing that on two separate occasions he has enrolled in, and participated in, Alcoholics Anonymous.”[65]  Given this reliance on other evidence, it is unclear whether a person with multiple DUI offenses would satisfy the definition of “habitual drunkard” absent such additional corroboration.  If so, then New Jersey law would indeed bar gun possession by repeat DUI offenders.

Thus, as I have long suspended,[66] existing federal and state laws, in combination, already prohibit gun ownership by persons with multiple DUIs, with disarmament extending to three- or four-time DUI offenders in most states.  Whether laws in those states, or at the federal level, should be amended to instead disarm people with one or two DUIs is, of course, a separate question.

[1] See S.B. 755, 2013-2014 Leg., Reg. Sess. § 2(b)(7) (Cal. 2013) (imposing a 10-year ban on gun possession by anyone convicted of two DUI’s in 3 years); Consortium for Risk-Based Firearm Policy, Guns, Public Health, and Mental Illness: An Evidence-Based Approach for Federal Policy 16 (2013) (“Individuals convicted of two or more DWI or DUIs in a period of five years should be prohibited from purchasing and possessing firearms for at least five years.”); Jeffrey W. Swanson et al., Guns, Impulsive Angry Behavior, and Mental Disorders: Results from the National Comorbidity Survey Replication (NCS-R), 33 Behavioral Sci. & Law 199, 210 (2015) (“[G]un restrictions based on criminal records of . . . DUI/DWIs . . . could be a more effective – and politically more palatable – means of limiting gun access in this high-risk group.”); Garen J. Wintemute, Alcohol Misuse, Firearm Violence Perpetration, and Public Policy in the United States, Preventive Med., Oct. 2015, at 15, 19 (“[O]bjective criteria for firearm access restrictions could include . . . a history of multiple convictions for DUI and other alcohol-related offenses during a specified recent period of time as a marker of alcohol misuse.”); Steve S, Mental Health and Gun Laws, Alexandria (Jan. 21, 2013), https://www.aleksandreia.com/2013/01/21/mental-health-and-gun-laws/ (“A person willing to drive a car while intoxicated has demonstrated a lack of regard for the lives of others. They have forfeited the right to own a firearm.”).

[2] See Wintemute, supra note 1, at 18 (“Federal firearm statutes are essentially silent on alcohol. They do not restrict access to firearms by persons who are intoxicated or have a history of alcohol misuse, including prior convictions for alcohol-related offenses.”); id. (citation omitted) (“Only Maryland, Pennsylvania, Indiana, and the District of Columbia have generally restricted firearm acquisition or possession based on specific, quantifiable definitions of alcohol misuse [i.e., numbers of DUI convictions].”).  Note that the Indiana provision to which Wintemute refers was repealed in 2014.  See Act of Mar. 26, 2014, P.L.152-2014, § 2, 2014 Acts of Indiana 1791, 1792; compare Ind. Code § 35-47-2-7(b) (2015) with Ind. Code § 35-47-2-7(b)(3) (2012).

[3] For the purposes of this analysis, “DUI” refers only to the act of driving with a blood alcohol concentration of 0.08, absent aggravating factors such as driving with a minor, or causing injury or death to another person.

[4] 18 U.S.C. § 922(g)(1) (2012).

[5] Id. § 921(a)(20)(B).

[6] See United States v. Boumelhem, 339 F.3d 414, 425-27 (6th Cir. 2003).

[7] Mass. Gen. Laws ch. 274, § 1 (2016), states that “A crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.”  Id. ch. 90, § 24(1)(a)(1) ¶ 1 authorizes “imprisonment for not more than two and one-half years” for a first DUI, but not “imprisonment in the state prison for not less than two and one-half years,” as id. ch. 90, § 24(1)(a)(1) ¶ 5 (emphasis added) does for a third DUI.  Hence, a first DUI in Massachusetts is a misdemeanor.

[8] Id. ch. 90, § 24(1)(a)(1) ¶ 1.

[9] See Conn. Gen. Stat. § 14-227a(g)(2)(B) (2015) (2nd DUI in 10 yrs punishable by up to 2 yrs imprisonment); id. § 53a-25(a) (“An offense for which a person may be sentenced to a term of imprisonment in excess of one year is a felony.”).

[10] See Ind. Code § 9-30-5-3(a)(1) (2015) (2nd DUI in 5 yrs is Level 6 felony); id. § 35-50-2-7(b) (Level 6 felony punishable by up to 2.5 yrs imprisonment).

[11] See N.Y. Veh. & Traf. Law § 1193(1)(c) (2016) (2nd DUI in 10 yrs is class E felony); N.Y. Penal Law § 70.00(2)(e) (2016) (class E felony punishable by up to 4 yrs imprisonment).

[12] See Okla. Stat. 47, § 11-902(C)(2)(b) (2015) (2nd DUI in 10 yrs is felony punishable by up to 5 yrs imprisonment).

[13] See Alaska Stat. § 28.35.030(n) (2015) (3rd DUI in 10 yrs is class C felony); id. § 12.55.125(e)(1) (class C felony conviction is punishable by up to 2 yrs imprisonment “if the offense is a first felony conviction”).

[14] See Ariz. Rev. Stat. § 28-1383(A)(2) & (L)(1) (2016) (3rd DUI in 7 yrs is class 4 felony); id. § 13-702(D) (maximum, “aggravated sentence” for class 4 felony is 3.75 yrs).  Although the possible sentence for a class 4 felony is 1-5 yrs, only the maximum possible sentence matters when determining whether the federal felon ban applies.  See United States v. Hill, 539 F.3d 1213, 1218-21 (10th Cir. 2008); United States v. Murillo, 422 F.3d 1152, 1153-54 (9th Cir. 2005); United States v. Jones, 195 F.3d 205, 206-07 (4th Cir. 1999).

[15] See Del. Code tit. 21, § 4177(d)(3) (2016) (3rd DUI is class G felony punishable up to 2 yrs incarceration).  Id. tit. 21, § 4177(d)(2) authorizes up to 18 months’ imprisonment for a second DUI in 10 yrs, but does not deem that offense a felony; hence that offense is “an unclassified misdemeanor or an environmental misdemeanor or environmental violation,” id. tit. 11, § 4202(b).

[16] See Fla. Stat. § 316.193(2)(b)(1) (2016) (3rd DUI in 10 yrs is third-degree felony); id. § 775.082(3) (third-degree felony punishable by up to 5 yrs’ imprisonment).

[17] See Idaho Code § 18-8005(6) (2015) (3rd DUI in 10 yrs is felony punishable by up to 10 yrs imprisonment).

[18] See 625 Ill. Comp. Stat. 5/11-501(d)(1)(A) & (d)(2)(A) (2016) (3rd DUI is class 4 felony); 730 id. 5/5-4.5-45(a) (class 4 felony punishable by up to 3 yrs imprisonment).

[19] See Iowa Code § 321J.2(2)(c) & (5)(a) (2016) (3rd DUI is class D felony punishable by up to 5 yrs imprisonment).

[20] See La. Rev. Stat. §§ 14:98(D)(3), :98.3(A)(1) (2015) (3rd DUI in 10 yrs punishable by up to 5 yrs imprisonment “with or without hard labor”); id. § 14:2(A)(4) (defining “felony” as “any crime for which an offender may be sentenced to . . . imprisonment at hard labor.”).

[21] See Me. Rev. Stat. tit. 29-A, § 2411(5)(C) (2016) (3rd DUI in 10-yrs is Class C crime); id. tit. 17-A, § 1252(2)(C) (Class C crime punishable by up to 5 yrs imprisonment).

[22] See Md. Code Ann. Transp. § 27-101(a) & (k) (2016) (3rd DUI in 5 yrs is misdemeanor punishable by up to 3 yrs imprisonment).

[23] See Mich. Comp. Laws § 257.625(9)(c) (2016) (3rd DUI is felony punishable by up to 5 yrs imprisonment).

[24] See Miss. Code. Ann. § 63-11-30(2)(c) (2016) (3rd DUI in 5 yrs is felony punishable by up to 5 yrs imprisonment).

[25] See Mo. Rev. Stat. § 577.023(1)(5)(a) & (3) (2015) (3rd DUI is class D felony); id. § 558.011(1)(4) (class D felony punishable by up to 4 yrs imprisonment).

[26] See Nev. Rev. Stat. § 484C.400(1)(c) (2016) (3rd DUI in 7 yrs is category B felony punishable by up to 6 yrs imprisonment).

[27] See Or. Rev. Stat. § 813.011(1) (2015) (3rd DUI in 10 yrs is class C felony); id. § 161.605(3) (class C felony punishable by up to 5 yrs imprisonment).

[28] See R.I. Gen. Laws § 31-27-2(d)(3)(i) (2015) (3rd DUI in 5 yrs is felony punishable by up to 3 yrs imprisonment).

[29] See S.C. Code Ann. § 56-5-2933(A)(3) & (D) (2016) (3rd DUI in 10 yrs punishable by up to 3 yrs imprisonment); id. § 16-1-100(A) (stating that 3rd DUI in 10 yrs is a “Class A misdemeanor[]”).

[30] See S.D. Codified Laws §§ 32-23-4, 32-23-4.1 (2016) (3rd DUI in 10 yrs is class 6 felony); id. § 22-6-1(9) (class 6 felony punishable by up to 2 yrs imprisonment).

[31] See Tex. Penal Code Ann. § 49.09(b)(2) (2016) (3rd DUI is third degree felony); id. § 12.34(a) (third degree felony is punishable by up to 10 yrs imprisonment).

[32] See Utah Code § 41-6a-503(2)(b) (2016) (3rd DUI in 10 yrs is third degree felony); id. § 76-3-203(3) (third degree felony punishable by up to 5 yrs imprisonment).

[33] See Vt. Stat. tit. 23, § 1210(d) (2015) (3rd DUI is punishable by up to 5 yrs imprisonment); id. tit. 13, § 1 (deeming a “felony” any offense punishable by over 2 yrs imprisonment).

[34] See Va. Code § 18.2-270(C)(1) (2016) (3rd DUI in 10 yrs is class 6 felony); id. § 18.2-10(f) (class 6 felony punishable by up to 5 yrs imprisonment).

[35] See W. Va. Code § 17C-5-2(m)-(n) (2015) (3rd DUI in 10 yrs is felony punishable by up to 5 yrs imprisonment).

[36] See Ala. Code § 32-5A-191(h) (2016) (4th DUI is class C felony punishable by up to 10 yrs imprisonment).

[37] See Ark. Code Ann. § 5-65-111(d)(1)(A) (2016) (4th DUI in 5 yrs is “unclassified felony” punishable by up to 6 yrs imprisonment).

[38] See Cal. Veh. Code § 23550(a) (2016) (4th DUI in 10 yrs punishable “by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code”); Cal. Penal Code § 1170(h)(1) (2016) (authorizing up to 3 yrs imprisonment in county jail).  Note that a 4th DUI in California is a “wobbler” offense, which is a felony by default, but can be reclassified as a misdemeanor if a court, prosecuting attorney, or magistrate satisfies the conditions of Cal. Penal Code § 17(b).  If so reclassified, then a 4th DUI would be punishable by up to a year’s imprisonment in county jail, and consequently would not trigger the federal felon gun ban.  See United States v. Boumelhem, 339 F.3d 414, 425-27 (6th Cir. 2003) (discussing when these sorts of “wobbler” crimes qualify as predicate offenses for purposes of this ban).

[39] See Colo. Rev. Stat. § 42-4-1301(1)(a) (2015) (4th DUI is class 4 felony); id. § 18-1.3-401(1)(a)(V)(A) (class 4 felony punishable by up to 6 yrs imprisonment).

[40] See Ga. Code Ann. § 40-6-391(c)(4)(B) (2016) (4th DUI in 10 yrs is punishable by up to 5 yrs imprisonment); id. § 16-1-3(5) (“‘Felony’ means a crime punishable . . . by imprisonment for more than 12 months.”).

[41] See Haw. Rev. Stat. § 291E-61.5(c)-(d)(1) (2016) (4th DUI is class C felony punishable by up to 5 yrs imprisonment).

[42] See Ky. Rev. Stat. § 189A.010(5)(d) (2016) (4th DUI in 10 yrs is Class D felony); id. § 532.060(2)(d) (Class D felony is punishable by up to 5 yrs imprisonment)

[43] See Minn. Stat. § 169A.24 subdiv. 2 (2015) (4th DWI in 10 yrs is felony punishable by up to 7 yrs imprisonment).

[44] See Mont. Code Ann. § 61-8-731(1) (2015) (4th DUI is felony punishable by up to 5 yrs imprisonment).

[45] See Neb. Rev. Stat. § 60-6,197.03(7) (2016) (4th DUI is class IIIA felony); id. § 28-105(1) (class IIIA felony punishable by up to 3 yrs imprisonment).

[46] See N.H. Rev. Stat. Ann. § 265-A:18(IV)(c) (2016) (4th DWI in 10 yrs “is a felony”); id. § 625:9(III)(a) (“Felonies other than murder are either class A felonies or class B felonies when committed by an individual.”); id. § 625:9(III)(a)(2) (class B felony punishable by up to 7 yrs imprisonment).

[47] See N.M. Stat. § 66-8-102(G) (2015) (4th DUI is 4th degree felony punishable by up to 18 months’ imprisonment).

[48] See N.C. Gen. Stat. § 20-138.1(d) (2015) (DUI offense is misdemeanor); id. § 20-179(c)(1)(a) & (f3) (4th DUI in 7 yrs is punishable by up to 3 yrs imprisonment).  Note that DUI’s are exempt from the “structured sentencing” regime imposed by N.C. Gen. Stat. ch. 15A, art. 81B (2016).  See id. § 15A-1340.10 (“This Article applies to criminal offenses in North Carolina, other than impaired driving under G.S. 20-138.1 . . . .”).

[49] See N.D. Cent. Code § 39-08-01(3) (2016) (4th DUI in 15 yrs is class C felony); id. § 12.1-32-01(4) (class C felony punishable by up to 5 yrs imprisonment).

[50] See Ohio Rev. Code § 4511.19(G)(1)(d) (2016) (4th DUI in 6 yrs is 4th degree felony punishable by up to 30 months’ imprisonment).

[51] See Tenn. Code Ann. §§ 55-10-402(a)(4), 55-10-405(a) (2016) (4th DWI in 10 yrs is class E felony); id. § 40-35-111(b)(5) (class E felony punishable by up to 6 yrs imprisonment).

[52] See Wis. Stat. § 346.65(2)(am)(4m) (2016) (4th DUI, with 3rd DUI within 5 yrs, is class H felony); id. § 939.50(3)(h) (class H felony punishable by up to 6 yrs imprisonment).

[53] See Wyo. Stat. Ann. § 31-5-233(e) (2016) (4th DUI in 10 yrs is felony punishable by up to 7 yrs imprisonment).

[54] See Wash. Rev. Code § 46.61.502(6)(a) (2016) (5th DUI in 10 yrs is class B felony); id. § 9A.20.021(1)(c) (class B felony punishable by up to 10 yrs imprisonment).

[55] See Kan Stat. Ann. § 8-1567(b)(1)(D)-(E) (2015) (4th DUI, or 3rd DUI with prior DUI in 10 yrs, is nonperson felony punishable by up to 1 year in prison).

[56] See N.J. Stat. § 39:4-50(3) (2016) (3rd DUI in 20 yrs punishable by 180-day jail term); State v. Hamm, 577 A.2d 1259 (N.J. 1990) (holding that DUI in New Jersey is not a criminal offense).

[57] See 75 Pa. Cons. Stat. § 3803(a)(2) (2016) (3rd DUI is 2nd degree misdemeanor); 18 id. § 1104(2) (2nd degree misdemeanor punishable by up to 2 yrs imprisonment).

[58] See D.C. Code § 50–2206.13(c) (2016) (3rd DUI punishable by up to 1 yrs imprisonment).  Note that D.C. is treated as a state for purposes of the federal felon gun ban.  See 18 U.S.C § 921(a)(2) (“The term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone).”).

[59] See D.C. Code § 7–2502.01(a) (2016) (prohibiting gun possession by anyone in D.C. “unless the person or organization holds a valid registration certificate for the firearm.”); id. § 7–2502.03(a)(4)(C) (barring issuance of a registration certificate to anyone “convicted within 5 years prior to the application of . . . Two or more violations of . . . in this or any other jurisdiction, any law restricting driving under the influence of alcohol”).

[60] See Kan Stat. Ann. § 8-1567(b)(1)(D) (2015) (3rd DUI, with prior DUI in 10 yrs, is nonperson felony); id. § 21-6304(a)(3)(B) (banning gun possession by anyone who “within the preceding 10 years, has been convicted of a . . . nonperson felony under the laws of Kansas”).

[61] See 18 Pa. Cons. Stat. § 6103(c)(3) (2016) (prohibiting gun possession by any “person who has been convicted of driving under the influence of alcohol . . . on three or more separate occasions within a five-year period.”).

[62] See N.J. Stat. § 2C:39-5(b)-(c) (2016) (barring handgun possession by anyone who lacks “a permit to carry the same,” and possession of “any rifle or shotgun without having first obtained a firearms purchaser identification card”); id. § 2C:58-3(c)(2) (barring issuance of a “firearms purchaser identification card . . . to any person who is presently an habitual drunkard”); id. § 2C:58-4(d) (barring issuance of handgun carry permits to anyone “subject to any of the disabilities set forth in section 2C:58-3c . . . .”).

[63] See State v. Pyskaty, No. A-3742-09T1, 2011 N.J. Super. Unpub. LEXIS 1822, at *11-12 (N.J. Super. Ct. App. Div. Jul. 8, 2011) (holding that “one DWI conviction from several years earlier” did not provide sufficient evidence to conclude that defendant was a “habitual drunkard”).

[64] State v. Freysinger, 710 A.2d 596, 598 (N.J. Super. Ct. Ch. Div. 1997) [hereinafter Freysinger I].  See also State v. Freysinger, 710 A.2d 582, 586 (N.J. Super. Ct. App. Div. 1998) (holding that “two driving under the influence convictions and two convictions for refusing to submit to chemical tests” provided “sufficient proof . . . to demonstrate that defendant . . . is an habitual drunkard . . . .”).

[65] Freysinger I, 710 A.2d at 598.

[66] See MI, Comment to Background Checks, Alexandria (Mar. 17, 2013, 10:44 PM), https://www.aleksandreia.com/2013/03/17/background-checks/#comment-143188 (noting that the federal felon gun ban may apply to some DUI convictions “depend[ing] on the particulars of state law, and perhaps on how many DUIs one already has.”).

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