www.kisslinglaw.com
Below is a great article on the effects of a DWI in NC to your ability to possess a fire arm. As always, thanks to Shea Denning at the school of government.
The maximum punishment for driving while impaired in violation of
G.S. 20-138.1 increased from two to three years in 2011. As a result,
defendants convicted of misdemeanor DWI and sentenced at the most
serious level—Aggravated Level One—are prohibited from possessing
firearms by federal law. That’s because federal law prohibits firearm
possession by a person who has been convicted of a crime punishable by
imprisonment for a term exceeding one year, though state law
misdemeanors that are punishable by a term of imprisonment of two years
or less are excluded from this category of disqualifying convictions.
Because North Carolina law sets out a single offense of driving while
impaired, which may be punished at varying levels, rather than six
separate offenses, there is a question as to whether
any
defendant convicted of misdemeanor DWI on or after December 1, 2011 may
lawfully possess a firearm, regardless of the level at which the
defendant was actually punished.
Federal gun law. The federal law colloquially referred to as the felon-in-possession statute is 18 U.S.C. § 922(g)(1).
See Schrader v. Holder, 831 F. Supp. 2d 304, 309 (D.D.C. 2011)
aff’d,
704 F.3d 980 (D.C. Cir. 2013). That label is a misnomer, however, as
misdemeanor convictions punishable by more than two years imprisonment
under state law also disqualify a person from possessing a firearm.
Id.
Section 922(g)(1) makes it unlawful for any person “who has been
convicted in any court of a crime punishable by imprisonment for a term
exceeding one year” to possess a firearm. Another provision, 18 U.S.C. §
921(a)(20), defines “crime punishable by imprisonment for a term
exceeding one year” to exclude “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.” Thus, for defendants convicted of misdemeanors
under state law, the question of whether they are disqualified from
possessing a firearm under 18 U.S.C. 922(g)(1) is determined by whether
the misdemeanor for which they were convicted carried a maximum
punishment of more than two years. If so, the person is disqualified. (
A
separate provision of federal law, 18 U.S.C. § 922(g)(9), prohibits
firearm possession by a person who has been convicted of a misdemeanor
crime of domestic violence. That provision is not tied to a
determination of the maximum punishment that could have been imposed for
the crime, and is not discussed herein.)
State DWI law. G.S. 20-138.1
proscribes the conduct known as DWI in North Carolina. A person who
(1) drives (2) a vehicle (3) on a street, highway, or public vehicular
area within the State, (4) while under the influence of an impairing
substance commits the offense of misdemeanor DWI. The person’s relative
culpability is sorted out at sentencing, based largely on whether the
person (1) had other DWI convictions within the previous seven years;
(2) had a license that was already revoked for DWI; (3) seriously
injured another person; and/or (4) had a child or disabled person in the
vehicle when he or she drove.
See G.S. 20-179(c).
In superior court, the State must notify the defendant in writing and
before trial of its intention to prove any aggravating factor, including
the four grossly aggravating factors previously mentioned. The
existence of one or more grossly aggravating factors increases the
potential punishment a defendant faces. If three or more grossly
aggravating factors are found, the defendant is punished at Aggravated
Level One, and may receive up to three years’ imprisonment. If two
grossly aggravating factors are found, the defendant is punished at
Level One, and may receive up to two years’ imprisonment. Levels Two
through Five carry lesser maximum punishments.
Because G.S. 20-179 effectively requires a prosecutor in superior
court to plead applicable aggravating factors, and requires that such
factors, other than the fact of a prior conviction, be proved to the
jury beyond a reasonable doubt, questions regarding whether
G.S. 20-138.1 and
G.S. 20-179
define one or six offenses are, in most circumstances, academic. The
federal felon-in-possession law is, however, an exception. If there are
six separate DWI offenses, then only a DWI conviction punished at
Aggravated Level One disqualifies a defendant from possessing a
firearm. If there is but one crime of DWI that carries a maximum
punishment of three years, then any conviction for a DWI committed
December 1, 2011 or later
might be viewed as disqualifying
disqualifiesa defendant from possessing a firearm.
See
Binderup v. Holder, 2014 WL 4764424 (E.D.Pa. Sept 25, 2014)
(unpublished op.) (“The cases discussed above demonstrate that the
phrase “punishable by”, as utilized in § 921(a)(20) and § 922(g)(1),
concerns the maximum . . potential . . . term of imprisonment
applicable to a particular prior state-law conviction.”).
It seems to me that there are reasonable arguments to be made both ways.
The Fourth Circuit’s
analysis in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), of
whether convictions under the State’s structured sentencing laws qualify
as offenses “punishable by imprisonment for more than one year,” tends
to support the view that only a defendant punished at Aggravated Level
One is disqualified under § 922(g)(1). The Simmons court
concluded that the defendant’s conviction for a Class I felony offense
for which he could not have received a sentence exceeding eight months’
community punishment given his lack of criminal history was not a
conviction for an offense punishable by imprisonment for term exceeding
one year, even though a defendant with a certain number of prior
criminal convictions could have received a sentence exceeding twelve
months’ imprisonment. The court explained that the “mere possibility
that Simmons’s conduct, coupled with facts outside the record of
conviction, could have authorized a conviction of a crime punishable by
more than one year’s imprisonment cannot and does not demonstrate that
Simmons was actually convicted of such a crime.” Id. at 244
(internal quotations omitted). The Fourth Circuit in United States v.
Carter, 471 Fed. Appx. 136 (4th Cir. 2012) (unpublished op.), applied Simmons in determining that a defendant’s prior convictions for drug offense classified as felonies
under North Carolina’s structured sentencing regime were not offenses
punishable by a term of imprisonment exceeding one year for purposes of
the federal felon-in-possession statute.
Simmons relied upon
the fact that the State had to prove the existence of aggravating
factors sufficient to warrant the imposition of an aggravated sentence
under the Structured Sentencing Act. That also is true under the
sentencing scheme set forth in G.S. 20-179 for DWI.
May the federal government categorically ban persons convicted of DWI from possessing a firearm?
The right to bear arms. The United States Supreme
Court in District of Columbia v. Heller, 554 U.S. 570 (2008), held that
the Second Amendment protects a personal right to keep and bear arms for
lawful purposes, including self-defense within the home. In
recognizing an individual right to keep and bear arms, however, the
court was careful to note that it did not intend to “cast doubt on
longstanding prohibitions on the possession of firearms by felons and
the mentally ill,” as well as other long-enshrined restrictions.
See also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010) (plurality op.) (“We made it clear in
Heller
that our holding did not cast doubt on such longstanding regulatory
measures as ‘prohibitions on the possession of firearms by felons and
the mentally ill,’ . . . . We repeat those assurances here. Despite
municipal respondents’ doomsday proclamations, incorporation [of the
Second Amendment by the Fourteenth Amendment] does not imperil every law
regulating firearms.”). Courts considering post-
Heller challenges to § 922(g)(1) have relied upon this commentary in upholding the provision as constitutional.
Are misdemeanants different? The District of
Columbia Circuit Court of Appeals in Schrader v. Holder, 704 F.3d 980
(D.C. Cir. 2013), considered plaintiffs’ challenge to his
disqualification under § 922(g)(1) based on a decades-old conviction of a
common law misdemeanor. The
Schrader court determined that
even assuming that common-law misdemeanants fell within the scope of the
Second Amendment’s protection, the firearms ban imposed upon this class
of individuals was constitutional. The court applied intermediate,
rather than strict, scrutiny since “common-law misdemeanants as a class
cannot be considered law abiding and responsible.”
Id. at 989.
Thus, the government was required to demonstrate that disarming
common-law misdemeanants is substantially related to an important
governmental objective.
Schrader held that the government met
this test. The statute’s overarching objective is prevention of armed
violence, which is of obvious importance. The firearms ban in §
922(g)(1) is reasonably designed to accomplish that objective as it
keeps guns away from people suspected of more serious crimes—people who
might be expected to misuse such weapons. While some common-law
misdemeanants may pose no such risk,
Schrader noted that
“Congress is not limited to case-by-case exclusions of persons who have
been shown to be untrustworthy with weapons.”
Id. at 991 (internal citations omitted).
As-applied challenges might succeed. The
Schrader court noted that
Heller
might dictate a different outcome had the plaintiffs raised an
as-applied challenge. Schrader himself was disqualified based on a
misdemeanor conviction for assault and battery that occurred forty years
before he sought to purchase a gun. The offense involved only a
fistfight. Schrader received no jail time, served honorably in Vietnam,
and, except for a single traffic violation, had no arrests or
convictions in the years that followed. The court declined to consider
such a challenge, however, as it had not been argued below.
