Orange County DUI Lawyer Blog
California has some of the toughest gun ownership laws in the country. All felony convictions and many misdemeanor convictions can result in restrictions on firearm ownership. Orange County DUI attorney William Weinberg understands that for many of his clients, their Second Amendment right is very important to them and he takes this into consideration when defending these clients.
Most DUIs will not result in a restriction on the defendant’s gun rights; however, many DUI convictions will. All felony DUI convictions will trigger a mandatory restriction on the right to own or bear a firearm. Anyone convicted of felony DUI faces a lifetime ban on owning, possessing, or buying a firearm in California. In addition, any firearms the felon possesses must be relinquished. A DUI can become a felony under many circumstances. Examples include a DUI that causes injury or death, a fourth DUI, or having a prior felony DUI on your record. In addition, some offenses related to a DUI, such as evading the police during a DUI stop or child endangerment (child under the age of 14 while driving under the influence) can be charged as felonies and if convicted on the felony charge will result in a ban against the ownership or possession of any firearm.
Orange County DUI defense attorney can help those convicted on a DUI felony restore their Constitutional 2nd Amendment right. The best defense strategy is to avoid the felony in the first place by arguing for a reduction of the felony charge to a misdemeanor. This is often an available strategy on “wobbler” charges (charges that can be charged as a felony or a misdemeanor) and is accomplished during plea bargaining. Sometimes though, the charge is serious enough and/or the evidence does not convince the prosecutor to go along with the reduction. But there is still a way although not immediately available.
After a defendant has successfully completed his or her term of punishment for the DUI felony, the defendant – in most cases, but not all – can petition the court to reduce the felony conviction to a misdemeanor. This is called a 17b motion or petition, so named because the statute that provides for the petition is Penal Code section 17(b)(3). If the court grants the petition, your gun rights will usually be restored. There are several other ways to restore your gun rights after a felony conviction, but those provisions, certificate of rehabilitation and pardon, are difficult and not often granted. Since most felony DUI convictions are “wobblers,” and thus eligible for a 17b petition, most people will have this procedure available to them.
But it can be more complicated. Federal law is even more strict than California law and bans the ownership, possession, or purchase of firearms by anyone who has been convicted in any court of a crime that carries a term of incarceration that exceeds one year. In California, that would be any felony conviction. It does not matter if you were actually incarcerated, the triggering factor is what the offense punishment prescribes. And here is where it can get complicated.
Federal law imposes a lifetime firearm ban on any felony conviction. However, the federal courts have held that the controlling determination is whether the conviction was a felony under state law. A successful 17b motion removes the felony from the former defendant’s record under California statute, it would make sense that the federal firearm disability is also lifted. However, it is not so simple. The federal statute defines the offense as a felony based on what the punishment for the offense as convicted is in a particular state, not what it might be reduced to. The federal courts have not provided a clear answer on whether a 17b reduction applies to federal gun rights. So, while your gun rights might be restored under California law after a successful 17b motion, you could still face a prohibition on your 2nd Amendment right under federal law. And that would apply not only in California but in any state as it is a federal prohibition.
Orange County DUI defense attorney has defended hundreds of DUI cases over his 25 years of practice. After his many years of experience, he understands the intricacies of the law and will work hard to achieve the best outcome for his clients. He is available for a complimentary consultation. You may contact him at his Irvine office at 949-474-8008 or by emailing him at bill@williamweinberg.com.