DUI and Gun Rights Restoration

Summary:

For individuals with prior DUI convictions, particularly felony offenses, gun rights restoration is critical for regaining Second Amendment liberties and employment opportunities in fields like security or law enforcement. In the United States, federal law (18 U.S.C. §922(g)) prohibits firearm possession by anyone convicted of a crime punishable by imprisonment exceeding one year – a threshold that applies to many felony DUI convictions. This creates unique challenges when navigating restoration pathways, as state laws vary significantly. Those with a DUI conviction face a two-tiered battle: criminal penalties at sentencing and collateral civil consequences regarding firearm ownership. The legal complexity is compounded when dealing with both federal and state firearm prohibitions.

What This Means for You:

• Immediate Action: Contact a firearms attorney within 24 hours of any felony DUI arrest. The Lautenberg Amendment (18 U.S.C. §922(g)(1)) permanently prohibits firearm possession for those convicted of crimes punishable by >1 year imprisonment. Immediately request a copy of the arrest report and certified court disposition documents to analyze your case specifics.
• Legal Risks: A felony DUI conviction can result in federal firearm prohibition under 18 U.S.C. §922(g)(1), with potential penalties up to 10 years imprisonment. For misdemeanor DUI with firearm prohibition, the maximum sentence varies by state (e.g., 3 years in Florida under §790.23). State risks include firearm forfeiture (Texas Penal Code §46.04) and loss of concealed carry permits (California PC §29800).
• Financial Impact: Expect $20,000-$50,000+ in restoration costs including legal fees ($15,000-$30,000), court costs ($2,000-$5,000 for petition filing), and mandatory evaluations. Add $10,000-$20,000 in DUI penalties (e.g., ignition interlock at $1,200/year). Forfeiture of firearms can cost $10,000-$100,000+ in lost weapon value.
• Long-Term Strategy: Pursue restoration of gun rights through specific state remedies (e.g., Certificate of Relief in Florida §790.065, or Expungement in Michigan MCL §780.621). In federal cases, investigate pardon petitions (18 U.S.C. §925) or firearm restoration via 18 U.S.C. §921(a)(20) for state convictions that are later restored under state law.

Explained: DUI and Gun Rights Restoration

Under federal law (18 U.S.C. §922(g)(1)), any felony DUI conviction constitutes a “crime punishable by imprisonment exceeding one year” that permanently prohibits firearm possession. At the federal level, the prohibition applies to both misdemeanor and felony DUI convictions where firearms are prohibited under state law (e.g., California Penal Code §29800). For state-level convictions to be restored, the firearm prohibition must be explicitly lifted through certificates of relief or other mechanisms in the state where the conviction occurred.

Restoration is governed by the intersection of state and federal statutes. The Firearm Owners’ Protection Act (18 U.S.C. §921(a)(20)) provides that convictions expunged or set aside under state law are not considered “prohibitions” for federal purposes. However, this is only applicable if the state restoration process includes full restoration of firearms rights. For example, a Michigan DUI expungement under MCL §780.621(9) will automatically restore firearm rights, but Florida’s expungement (Fla. Stat. §943.0585) does not automatically restore firearm rights.

Types of DUI Offenses Affecting Gun Rights:

Felony DUI convictions (e.g., 3rd offense in Michigan under MCL §257.625(3) or 3rd offense in Florida under §316.193(2)(a)) trigger the federal firearm prohibition. Other DUI variations include “DUI causing injury” (California Penal Code §23153) or “DUI with a minor” (Alabama Code §13A-11-2.1), each of which can result in enhanced firearm prohibitions. In several states, alternatives exist, such as a DUI pleading to a “wet reckless” (California VC §23103.5), which may not trigger the federal firearm prohibition.

States with extreme firearm prohibitions include: Texas (DWI with a BAC of 0.15+ is a Class A misdemeanor, TX Penal Code §49.04(d)), which triggers a 5-year firearm prohibition under §49.09(b). Colorado (DUI per se, C.R.S. §42-4-1301) prohibits firearm possession for a first-time misdemeanor DUI for 3 years under §18-18-111(3)(a)(II).

Common Defenses for DUI Firearm Rights Restoration:

Legal defenses can challenge the firearm prohibition. For example, in Oregon, a “motion to set aside” (ORS §137.225) allows for firearm restoration if the DUI conviction was a misdemeanor. In California, a “Certificate of Rehabilitation” (PC §4852.01) may be used for firearm restoration by petitioning the court. Constitutional challenges to firearm prohibitions for misdemeanors are also increasingly viable, as in the March 2024 ruling in United States v Daniels (USDC 6th Cir. No. 22-1933), which found that certain misdemeanor DUI convictions do not establish a “serious” crime that would justify firearm prohibition.

Technical defenses can invalidate the prohibition. For instance, if the original conviction fails to show that the firearm prohibition was properly explained, a defendant may argue that the plea was not knowing and voluntary (Brady v. U.S. 397 U.S. 742 (1970)). In Texas, where a DUI conviction is not an automatic felony (unless it’s a third offense), the firearm prohibition may only apply to people with a felony DUI conviction (TX Penal Code § 46.04).

Penalties and Consequences of DUI Offenses:

For felony DUI convictions, the federal firearm prohibition applies to all felonies, including misdemeanors that are later upgraded to felonies. When a firearm prohibition is triggered, the consequences include:
– Federal forfeiture of firearms (18 U.S.C. §924(d)(1) and 18 U.S.C. §924(e)(1))
– For DUI convictions, the firearm prohibition can last for life (e.g., for convictions under 18 U.S.C. §922(g)(1)), but some states have restoration periods. In Florida, first-time misdemeanor DUI offenders can petition for firearm restoration after three years (Florida Statute §790.065).

For those convicted of a DUI with a firearm present, the penalties can be enhanced. For example, in Kentucky, under KRS 527.040, a “DUI with a firearm” is a felony offense, punishable by up to 10 years in prison and a lifetime firearm prohibition (KRS §527.040(1)).

The DUI Legal Process: Impact on Gun Rights

At the administrative hearing (DMV/DOL), the BAC level is contested. The outcome of the DUI/DOL hearing can affect the firearm prohibition. For example, in Washington State, a BAC of 0.15 or higher is an aggravating factor (RCW §46.61.5155(2)(a)) that triggers a 5-year firearm prohibition (RCW §9.41.040(3)(a)(vi)). At the criminal arraignment, the defendant must be informed of the firearm prohibition. In Florida, the court must orally inform the defendant of the firearm prohibition under §790.065(1)(a) at the arraignment.

Following the plea bargaining phase, certain convictions, such as a “wet reckless” plea, may not trigger the firearm prohibition if the defendant retains a firearm attorney. However, if the defendant is convicted of a felony DUI, pre-trial motions to dismiss under §790.065(2)(a) (Florida) may be filed. In Washington, the felony DUI firearm prohibition is outlined in the Firearms Safety Act (RCW §9.41.040(3)(a)(vi)). At sentencing, the defendant must be notified of the firearm prohibition in states like Florida by §790.065(1)(a).

Choosing a DUI Attorney for Gun Rights Restoration:

Select an attorney with expertise in both DUI law and firearm restoration. For example, in Michigan, where firearm rights are automatically restored through expungement (MCL §780.621(9)), an attorney must be familiar with the firearm restoration process. In Florida, see §790.065(2)(a) for firearm restoration petitions. Seek attorneys with specific experience in federal firearm restoration (18 U.S.C. §925(c)).

For a successful restoration, attorney certification is required. In Florida, the attorney must be recognized by the Florida Department of Law Enforcement (FDLE) to file a firearm restoration petition; in Michigan, the Michigan State Police (MSP) is responsible for firearm rights restoration. Attorney fees should include a retainer for the firearm restoration process (e.g., $5,000-$10,000 in Florida).

Other DUI Resources:

For firearm rights restoration, the ATF’s guide on firearm prohibitions (ATF Publication 5300.4) is available here. The National Rifle Association’s Institute for Legislative Action (NRA-ILA) provides information on state-specific firearm restoration laws here.

People Also Ask:

Can a misdemeanor DUI in Florida affect your gun rights?

Yes, Florida Statute §790.065(2)(a)(1) imposes a firearm prohibition for three years after the conviction of a misdemeanor DUI, unless the firearm prohibition is lifted via petition. For a first-time misdemeanor DUI, the firearm prohibition applies only if the firearm was involved in the DUI, e.g., the defendant was in possession of a firearm while driving under the influence (Florida Statute §790.23).

How long is the firearm prohibition for a felony DUI in Texas?

In Texas, the firearm prohibition for a felony DUI begins at five years (Texas Penal Code §46.04(a)(1)), and the prohibition is beyond the five years if the conviction is for Intoxication Manslaughter. After five years, the firearm rights may be restored via petition under Texas Penal Code §46.04(a)(1) by filing a firearm restoration petition with the court of conviction.

Can I restore my firearms rights after a DUI conviction in California?

Yes, in California, firearm rights restoration is possible through a Certificate of Rehabilitation (PC §4852.01). For a misdemeanor DUI, PC §29800 allows for firearm restoration after a 10-year waiting period. For felony DUI, a Certificate of Rehabilitation is required after 10 years (PC §4852.01(c)).

Do all states have firearm prohibitions for DUI convictions?

No, federal law (18 U.S.C. §922(g)(1)) applies only to felony convictions, but many states have enacted firearm prohibitions for misdemeanor DUI. For example, Kentucky (KY Rev. Stat. §527.040) imposes a firearm prohibition for a first-time misdemeanor DUI for 5 years, while Michigan (MCL §750.224f) only imposes a firearm prohibition for felony DUI convictions.

Can I transport firearms after a DUI conviction in Ohio?

In Ohio, for a misdemeanor DUI conviction, a firearm prohibition is imposed for a period of three years (Ohio Rev. Code §2929.13-2929.14). For felony DUI convictions, Ohio requires a lifetime firearm prohibition (ORC §2923.13(A)(1)). For firearm restoration, a petition to the court of conviction is required under ORC §2929.13.

Expert Opinion:

The firearm prohibition stemming from a DUI conviction is a dual threat to constitutional rights and personal freedom, demanding immediate action from experienced attorneys who understand both firearm restoration and DUI law. In states like Florida and Texas, waiting periods are triggered, and for firearm rights to be restored, a petition must be filed in the state where the conviction occurred. In Michigan, where firearm rights are restored automatically upon expungement, the process is still complex and requires expert navigation.

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