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Can a Virginia DUI Conviction Affect Your Right to Own a Firearm?

Jan. 24, 2020

The right to own and use a firearm is a Constitutional right. Gun owners throughout Virginia have been vigorously advocating their rights, too. They believe in the Second Amendment and are voicing their concerns over a rising movement to regulate gun ownership more thoroughly.

But for gun owners and non-owners alike, it may come as a surprise that a DUI conviction could potentially affect a person's right to own and use a firearm – not just temporarily but for the rest of his or her life. A recent decision by the U.S. Court of Appeals for the 3rd Circuit Court – though not having jurisdiction over Virginia – recently highlighted this issue. Here's what you should know and keep in mind if you are a zealous gun owner but like to go out and have a drink every now and then.

The Case of An Old DUI & the Right to Purchase a Gun

Raymond Holloway, Jr., a DUI offender in Pennsylvania, filed a lawsuit in 2017 complaining that a DUI dating back 12 years still prevented him from purchasing a gun. He insisted in the complaint that the gun would be for protection. In this precedent-setting case known as Holloway v. Attorney General United States, No. 18-3595 (3d Cir. 2020), the court did not agree with Holloway.

Holloway was convicted of a DUI in 2005. His blood alcohol content (BAC) level was above 0.16 percent, meaning it was more than twice the legal limit. The offense is a first-degree misdemeanor that carried the potential of up to five years in jail. Holloway, however, only spent 90 days in jail.

To note, the 2005 DUI conviction was his second. In 2003, he had been charged with another DUI, but that one was removed upon his participation in the Accelerated Rehabilitative Disposition program in Montgomery County.

In 2016, he tried to buy guns but was barred because federal law labeled his 2005 DUI conviction as a "serious crime." His attorney argued it is not a serious crime. But under 18 U.S.C. § 922(g)(1), a person cannot possess a gun if he or she

has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.

This phrase, however, may be somewhat misleading but is clarified at 18 U.S.C. 921(a)(20). The phrase does not pertain to state misdemeanors that are

punishable by a term of imprisonment of two years or less.

Rather, the phrase pertains to the maximum sentence a judge can order. In Pennsylvania, a first-degree misdemeanor is punishable by up to five years in jail, so this penalty would apply to the firearm prohibition under Federal law. Further, in the Holloway case, the dissenting judge noted that Holloway received the lightest sentence of only 90 days. But again, the Federal gun prohibition applies to the maximum sentence and not the actual sentence imposed.

The dissenting judge also noted that this verdict is unfair because each state assigns penalties to DUI cases differently, and as such, for the same crime under the same circumstances, one person in another state may be able to keep his or her gun ownership rights while the same is not true in Pennsylvania.

Could a DUI in Virginia Prevent You from Purchasing or Keeping Your Firearms?

The dissenting judge in the Holloway case made a good point on fairness. In Virginia, if you are convicted of a DUI and it's your first with a BAC at .16 percent up to .20 percent, you are only looking at a maximum jail sentence of one year but a mandatory jail term of 5 days due to the .16 BAC. If it is your second offense (depending on how long ago your first offense was) and your BAC was .16 percent, you face a potential incarceration sentence of between 30 days and one year with a mandatory minimum of 10 days for the .16 BAC.

So, if Holloway had been charged with the same offense in Virginia, he would still have his right to own and use a firearm.

But Virginians must keep in mind that you still risk a lifetime ban on gun ownership if you are convicted of three or more DUIs. A third DUI offense is a Class 6 felony, which includes a maximum sentence of five years of incarceration.

If you have questions about gun ownership and a DUI conviction or want to fight a DUI charge, it is always in your best interest to contact an experienced DUI defense attorney in Charlottesville, Virginia.