View Full Version : Dui?
the guy from work wants to buy a pistol, I know for sure that he had a couple of DUIs in the past (even spent 2 years in preason for it.) the question is - is it leagal to sell firearm to him? thanks.
That's one where I would support requiring him to pass a background check first. You ought to be able to find someone who will run it for him for $30 or so.
Batteriesnare
12-11-2009, 14:45
I thought a DUI was a felony, and felons cannot own firearms.
...a couple of DUIs ... 2 years in prison...
I'd be walking just for that... but is it legal, DUI is felony right? Still STRONGLY suggest you run a background as mentioned. How about going consignment through a FFL?
DUI is a felony? What the hell?
SA Friday
12-11-2009, 14:56
Any crime punishable with a prison sentence over 12 months is a felony. No, it's not legal to sell him a gun. You can try, but it would be a waste of $30.
DUI can be either. First time is normally not a felony depending on how drunk and what happened, but for a guy to spend 2 years in prison I would bet that is a felony. Normally excess of 1 year jail time goes with felony, I don't know if DUI is a special case. EDIT:beat me to it SA friday
Bailey Guns
12-11-2009, 15:18
Having made over 800 DUI arrests I can tell you DUI is not a felony. It's a misdemeanor...even for a second or subsequent offense. There would have had to be more than just a DUI for him to have gone to prison for 2 years...such as Habitual Offender, some sort of accident involving bodily injury or death, etc... It's possible he went to jail for two years on some sort of consecutive sentencing on more than one charge. Some people use jail and prison interchangably even though there's a difference. But the sentence for DUI cannot be more than 1 year in jail for just the DUI charge.
A DUI does not prohibit someone from getting a permit unless there is more than one (or a DL revocation) within 10 years of the application date:
From the County Sheriff's of Colorado website:
Chronically and habitually uses alcoholic beverages to the extent that the applicant's normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages to the extent that the applicant's normal faculties are impaired if the applicant has been committed as an alcoholic pursuant to C.R.S. 25-1-310 or 25-1-311 or has had two or more alcohol-related convictions or revocations under C.R.S. 42-4-1301 (1) or (2) or 42-2-126, or any law of another state that has similar elements, within the ten-year period immediately preceding the date on which the permit application is submitted. The prohibition specified shall not apply to an applicant who provides an affidavit, signed by a professional counselor who is licensed pursuant to Article 43 of Title 12, C.R.S. and specializes in alcohol addiction, stating that the applicant has been evaluated by the counselor and has been determined to be a recovering alcoholic who has refrained from using alcohol for at least three years; except it shall apply if the person was ever involuntarily committed as an alcoholic.
Having said all that, it may be legal for him to own/possess/buy a gun or it may not.
I agree with the other posters that this is a case where it would be prudent to have him go through a background check.
Having made over 800 DUI arrests I can tell you DUI is not a felony. It's a misdemeanor...even for a second or subsequent offense. There would have had to be more than just a DUI for him to have gone to prison for 2 years...such as Habitual Offender, some sort of accident involving bodily injury or death, etc... It's possible he went to jail for two years on some sort of consecutive sentencing on more than one charge. Some people use jail and prison interchangably even though there's a difference. But the sentence for DUI cannot be more than 1 year in jail for just the DUI charge.
A DUI does not prohibit someone from getting a permit unless there is more than one (or a DL revocation) within 10 years of the application date:
From the County Sheriff's of Colorado website:
Chronically and habitually uses alcoholic beverages to the extent that the applicant's normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages to the extent that the applicant's normal faculties are impaired if the applicant has been committed as an alcoholic pursuant to C.R.S. 25-1-310 or 25-1-311 or has had two or more alcohol-related convictions or revocations under C.R.S. 42-4-1301 (1) or (2) or 42-2-126, or any law of another state that has similar elements, within the ten-year period immediately preceding the date on which the permit application is submitted. The prohibition specified shall not apply to an applicant who provides an affidavit, signed by a professional counselor who is licensed pursuant to Article 43 of Title 12, C.R.S. and specializes in alcohol addiction, stating that the applicant has been evaluated by the counselor and has been determined to be a recovering alcoholic who has refrained from using alcohol for at least three years; except it shall apply if the person was ever involuntarily committed as an alcoholic.
Having said all that, it may be legal for him to own/possess/buy a gun or it may not.
I agree with the other posters that this is a case where it would be prudent to have him go through a background check.
Thank you!
That's one where I would support requiring him to pass a background check first. You ought to be able to find someone who will run it for him for $30 or so.
That's what I'm gonna ask him.
Bailey, if you have your gun in the car when you get a DUI, do you get it confiscated?
Also, let's say that you are caught carrying without a permit, but not otherwise commiting any other crimes. The police department takes your gun, but what right do they have to keep it, and can you get it back?
DUI Is a misdemeanor(second offense is a class 2) in Colorado, so a DUI does not necessarily disqualify one from owning arms.
More info:
CRS 42-4-1301 (http://www.michie.com/colorado/lpext.dll/cocode/2/6afa0/6c202/6c204/6d0f4/6d0f8?fn=document-frame.htm&f=templates&2.0#)
If your coworker spent more than 1 year in prison for any single count, or was convicted of any misdemeanor or felony crime which carried a possible sentence of more than 1 year, he is not eligible to own a firearm under 39 USC sec 922.
Any crime punishable with a prison sentence over 12 months is a felony. No, it's not legal to sell him a gun. You can try, but it would be a waste of $30.
I also thought this, but the guy is sure he doesn't have any felony records... well, we'll see what background check results are gonna be..
Bailey Guns
12-11-2009, 15:42
Bailey, if you have your gun in the car when you get a DUI, do you get it confiscated?
Also, let's say that you are caught carrying without a permit, but not otherwise commiting any other crimes. The police department takes your gun, but what right do they have to keep it, and can you get it back?
That would depend on where the gun was. If it was in your possession (usually defined roughly as you're able to reach it without much effort) you'll probably be charged with Prohibited Use of a Weapon. That's the charge for having a firearm in your possession while under the influence of alcohol or drugs. Yes, it will be confiscated.
If you get charged for Unlawfully Carrying a Concealed Weapon your gun will almost always be taken as evidence, just as it would for any other weapons charge. If you are convicted or plead guilty to any weapons charge you will generally lose the gun and it will be either sold or destroyed by the charging/arresting agency. There are always exceptions, though, depending on lots of variables.
Here's the appropriate statute (slightly paraphrased for brevity):
18-12-110. Forfeiture of firearms.
Upon the motion of the prosecuting attorney after the conviction of a defendant, the court may order the forfeiture of any firearms which were used by the defendant during the course of the criminal episode which gave rise to said conviction as an element of sentencing or as a condition of probation or of a deferred sentence. Firearms forfeited under this section shall be disposed of pursuant to section 16-13-311, C.R.S.
SA Friday
12-11-2009, 15:46
I also thought this, but the guy is sure he doesn't have any felony records... well, we'll see what background check results are gonna be..
The amount of info supplied concerning his history was very limited. I also suspect based on my experience interviewing people with criminal backgrounds, he might have left out some, um, details. That's why I was very selective in the wording of my previous post.
Bailey's info is really good. I suspect if he spent over 12 months in jail... there's probably something more there he's not telling you. Trust but verify on this one.
Is just carrying the gun without a permit considered a "criminal episode" though?
I just find it dumb that you can get a DUI and have your car impounded, but still get it back; but if you have a gun without a permit, or were drunk at the time, you can't get your gun back.
Thank you guys, a lot of good info here!
Is just carrying the gun without a permit considered a "criminal episode" though?
I just find it dumb that you can get a DUI and have your car impounded, but still get it back; but if you have a gun without a permit, or were drunk at the time, you can't get your gun back.
well, then I don't really understand the whole point of CCW Permit....
Bailey Guns
12-11-2009, 15:55
Is just carrying the gun without a permit considered a "criminal episode" though?
I just find it dumb that you can get a DUI and have your car impounded, but still get it back; but if you have a gun without a permit, or were drunk at the time, you can't get your gun back.
Yes...just the act of carrying the gun concealed - on or about your person - without a permit is a crime per 18-12-105 CRS. Could also apply to a knife (as defined by having a blade over 3.5" in length) if you're carrying it concealed.
You may or may not get your gun back. Like I said, it depends on a lot of variables...prior history, totality of the circumstances surrounding your arrest, mood of the prosecutor, etc...
There is a big difference between the misdemenor of carrying a gun without a permit, and committing a crime with a gun. That's why I liken it to the DUI thing. You can get your car out of impound, why not your gun?
BPTactical
12-11-2009, 17:43
Here is the only answer you need to relay to your friend: "C" on a 4473 form:
"Have you been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more
than one year, even if you received a shorter sentence including probation?"
I believe you stated that he had been jailed for 2 years for DUI correct? If so he is disqualified from purchasing a firearm.
And with the fact that you know of his situation it would be unlawful for you to sell a firearm to him.
Jumpstart
12-11-2009, 18:19
I was on a DUI and prohibited weapons charge jury. Dude had a 9 under his seat. Never pulled it, never was asked about it until they did a complete search at the SO. The big question, why would this citizen have his 2nd Amendment rights infringed upon because he had a firearm and a few beers in/on him? He wouldn't. He walked (and rightfully so) on the weapons charge. That's why I like Teller Co. People seem Constitutionally aware.
I was on a DUI and prohibited weapons charge jury. Dude had a 9 under his seat. Never pulled it, never was asked about it until they did a complete search at the SO. The big question, why would this citizen have his 2nd Amendment rights infringed upon because he had a firearm and a few beers in/on him? He wouldn't. He walked (and rightfully so) on the weapons charge. That's why I like Teller Co. People seem Constitutionally aware.
It's important to know the law. How long ago was this? Under current Colorado law, having a loaded handgun in your car is perfectly legal without a permit, so long as it's for "personal protection while traveling", so unless he was otherwise statutorily prohibited from possessing a firearm, he should never have been charged in the first place.
Well, I would have to agree with the whole back ground check thing. Have him pay for it. If he refutes doing it, them maybe its best to move on.
Or
Tell him after he gets his CCW, to com eand talk to you and you will hook him up. If he clears getting his CCW then he is good to go, if not......
Another thing you can do to save money, is go into a gun store with him, tell the guy behind the counter, "hey I want that one", fill out the paperwork and wait for the reply from CBI. If he passes the check, he can always "change his mind" on the purchase and walk out of the store. It may not be completely etical, but the big chain stores suck too much money from us anyway.:)
Just a thought,
Rob
(although somebody who spent two years in prision raises some flags for me)
Bailey Guns
12-11-2009, 19:58
It's important to know the law. How long ago was this? Under current Colorado law, having a loaded handgun in your car is perfectly legal without a permit, so long as it's for "personal protection while traveling", so unless he was otherwise statutorily prohibited from possessing a firearm, he should never have been charged in the first place.
I disagree on this statement (in bold) assuming he was "in possession" of the firearm. The law (18-12-106 (1)(d) is very clear that being in possession of a firearm while under the influence of intoxicating liquor or drugs is illegal.
The key would be possession. If it's locked in the trunk that's one thing. Under his seat (I'm assuming that means the driver's seat)? If he can reach it, he's in possession.
If a jury acquitted him on the Prohibited Use charge, that's fine. But from what Jumpstart said, it was an appropriate charge.
DUI isn't a felony. My buddy got one and he is still okay to buy guns. He just bought one about 2 weeks ago.
I used to work for the adams county parks and we had the inmates from the adams county jail come and work with us to do some of the shitty jobs so they could work off some of their sentences. I know of at least 2 guys that had 8+ DUIs and I don't either of them (or any of the other guys that were in for DUI) had received a felony for it. Pretty sure it is a misdemeanor unless something else is involved like assaulting a police officer.
theGinsue
12-11-2009, 22:19
It's possible he went to jail for two years on some sort of consecutive sentencing on more than one charge. Some people use jail and prison interchangably even though there's a difference.
My thoughts exactly.
Get the Background check on this guy. Friend or not, if he is NOT allowed to own/possess a firearm, and you had reasonable belief of such, you can be charged/convicted of a firearms related offense.
Be safe, get the check.
yeap, talked to the guy, said I'd feel more comfortable if we do it via FFL, he said "No problem".
will see...
My thoughts exactly.
Get the Background check on this guy. Friend or not, if he is NOT allowed to own/possess a firearm, and you had reasonable belief of such, you can be charged/convicted of a firearms related offense.
Be safe, get the check.
I feel there needs to be some clarification here.
Although everything Bailey Guns said is correct- there some exceptions.
Quite contrary to popular opinion, even if you're on parole, it is perfectly legal to own a gun for self defense purposes.
A defendant charged under this section who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property as recognized by section 13 of art. II, Colo. Const., thereby raises an affirmative defense. People v. Ford, 193 Colo. 459, 568 P.2d 26 (1977).Doesn't mean you wouldn't get arrested for it, however. Nor would I like to be in the hot seat on that one.
Also, the "ever" part does not exist. After 10 years, your civil rights are restored.
(I) From the date of adjudication to ten years after the date of adjudication, if the person was not committed to the department of institutions, or on or after July 1, 1994, to the department of human services; or
(II) From the date of adjudication to ten years after the date of release from commitment, if such person was committed to the department of institutions, or on or after July 1, 1994, to the department of human services or, if subject to supervision imposed as a result of an adjudication, ten years after the date of release from supervision.
So the amount of time that one had to do really doesn't matter if he's been good for ten years.
And to go past even that, if your civil rights have been restored, then even the feds can't charge you.
Prior Colorado conviction not predicate felony for purposes of federal prohibition of possession of firearm by felon. Defendant was wrongly charged for possession of gun by felon, because at the time of his arrest he was once again entitled to possess a gun. Under this statute defendant's civil rights had been restored ten years after he served time on his prior conviction, such rights encompassing his ability to possess a firearm. U.S. v. Hall, 20 F.3d 1066 (10th Cir. 1994).The only thing in Colorado that really would sink the ship is a domestic violence.
It is not your job nor your duty to scrutinize this person's background. All that state law says is that you see a valid Colorado ID and that you know of nothing that would bar said individual from legally possessing a firearm.
...and that you know of nothing that would bar said individual from legally possessing a firearm.
that's what I don't know...
Then you're good to go.
Like I said, it's not your job nor your duty. You are not expected to be a lawyer nor a cop.
If you don't know, then you don't know. You certainly can't and would not be held accountable for that. The prosecution would have to prove knowledge on your part. That is usually pretty hard, even with some "slam dunk" cases I've seen.
scratchy
12-12-2009, 00:31
Go to the CBI website. Have a credit card handy. You can run a background check on yourself for (I think) under $10. Very useful tool. Also, Lexis-Nexis will provide a deeper search (gets civil filings too) I forget how much I paid.
Frankly, I'm gonna do it via FFL any way, it'll make me feel safe...
Why?! So what?!
Why does everybody suddenly think it's their job to play cop? Do the gun-grabbing libbies have you all so afraid of your own shadows? This is silly. This is AMERICA. We are FREE.
Frankly, I'm gonna do it via FFL any way, it'll make me feel safe...
There's something to be said for that.
However, it's unnecessary.
There's something to be said for that.
However, it's unnecessary.
you see, those 2 years in prison messing up the whole situation here....
Then you're good to go.
Like I said, it's not your job nor your duty. You are not expected to be a lawyer nor a cop.
If you don't know, then you don't know. You certainly can't and would not be held accountable for that. The prosecution would have to prove knowledge on your part. That is usually pretty hard, even with some "slam dunk" cases I've seen.
You sure about that? What about that "ignorance of the law is no excuse" phrase?
Other folks are advising reasonable precaution; you're advocating he loudly sing "Mary had a little lamb" and pretend he couldn't know about this potentially illegal act. That's not good advice.
It's kind of like checking your backstop. "I didn't know" just doesn't hold up all that well as an excuse.
Yep,, Kind of have to agree with Robert.. Pleading ignorance didn't help that dude that sold the guns to Klebold and Harris used at Columbine..
Looking at something else, I came across a tidbit related to the situation at hand over at RMGO: (http://www.rmgo.org/faq/#Brady)
18 U.S.C. sec. 922 (g):
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or
having reasonable cause to believe that such person -
(1) is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
Since the original post stated the man had been in jail for 2 years, he would have reasonable cause to believe it could be against the law. Have it checked.
You sure about that? What about that "ignorance of the law is no excuse" phrase?
Other folks are advising reasonable precaution; you're advocating he loudly sing "Mary had a little lamb" and pretend he couldn't know about this potentially illegal act. That's not good advice.
It's kind of like checking your backstop. "I didn't know" just doesn't hold up all that well as an excuse.
Yes, I'm sure about that. 100%.
This is starting to enter the ridiculous phase, now, so I'll not play much longer.
I personally challenge you to find ANY case where the defendant really didn't know and was prosecuted.
If you want to be an idiot and take what I said out of context with your "Mary had a little Lamb" crap, then whatever. I will not play. Grow up.
And yes, it's excellent advice. From more than one attorney, from me being a Sheriff for a few years and actually being in court several times as an advisory witness. What first hand experience do you have?
Sure it's better to be safe than sorry. But you don't have to be a pantywaste. Your choice.
Marlin, as far as Columbine, you're comparing Apples to Oranges. Both that fellow and the "lady" had prior knowledge-and they bought them for UNDERAGE kids.
So that, too, is an irrelevant argument.
You may find one or two cases in the entire history of Colorado where someone has been indicted on such charges-but that is not the norm. And unless the fellow goes on a rampage, which is also not the norm, then not only would it be extremely hard to prosecute, it would not be worth the DA's time, money or effort.
Also, be realistic. If, in fact, this went to court-you're assuming one would tell the truth-pretty rare in court anyways, for cops as well as crooks.
So, let's see here. No bill of sale. No registration on said handgun. This fellows' word (who just killed several people) saying he bought the gun from you. There is no witness, no evidence, just his saying so. You, being a law-abiding citizen.
Yeah, right. Read the law. In most cases, his testimony wouldn't even be allowed in court. Your attorney would shred him. There's a thing called character when you get into these kinds of legal battles.
Again, simply silly.
If you abide by the law, do what is required, then you are safe.
The law is in place to protect the innocent and prosecute the guilty.
Looking at something else, I came across a tidbit related to the situation at hand over at RMGO: (http://www.rmgo.org/faq/#Brady)
Since the original post stated the man had been in jail for 2 years, he would have reasonable cause to believe it could be against the law. Have it checked.
Nice try, but that is federal law.
And realistically, you think the feds are going to drop everything they are doing to come after a law-abiding in Colorado because he sold a bad guy a firearm?
Ha-ha. Like that doesn't happen everyday. I think there are more than enough BGs out there to deal with.
In the end, your choice. Again, sure, better safe than sorry. But 99.9% of the time, if you follow the law, you will be fine, no matter what happens.
Boy, the libbies really do have you all crawling up mommys' skirt.
I'm done. Have a nice day.
Great-Kazoo
12-12-2009, 09:53
spend $10.00 on the CBI web site there you can do a BG check for anyone. I did not bother to waddle through 4 pages to see if this was said already if so then a dupe if not spend the $10.
CBI allows access to their checks as a lot of folks do it for renters, jobs etc.
Circuits
12-12-2009, 11:22
As an FFL, I can tell you that conviction of any crime for which you can be sentenced to over a year (exactly one year or less doesn't count) in jail is a disqualification for buying firearms from a licensed dealer. Not sure how or if that extends to firearms you already possess, or buying from private persons.
The "over one year" is on the 4473, and does NOT only include felonies... felonies are an automatic disqualification all their own.
As an FFL, I can tell you that conviction of any crime for which you can be sentenced to over a year (exactly one year or less doesn't count) in jail is a disqualification for buying firearms from a licensed dealer. Not sure how or if that extends to firearms you already possess, or buying from private persons.
The "over one year" is on the 4473, and does NOT only include felonies... felonies are an automatic disqualification all their own.
Pretty sure the law states you may not even own a firearm if convicted of a felony or crime punishable by more than 1 year in prison.
I would just pay the money for the background check, or have him pay it, or head to the local FFL shop and ask them to run one.
In the end, I would error on the side of safety. not worth it to lose your rights to sell a gun to a guy. especially since you have knowledge that he was in prison for 2 years.
Does anyone know what Colorado uses to determine if you are intoxicated while having a firearm? I assume they just use .08, but I know some states did/do have it where for driving it was .08, but a firearm it was 1.0. Anyone know?
Jumpstart
12-12-2009, 19:11
Grow a set and sell him the damn firearm. You are a apparently a citizen and so is he. The 2nd Amendment should be the only paperwork you need.
BPTactical
12-12-2009, 22:03
Grow a set and sell him the damn firearm. You are a apparently a citizen and so is he. The 2nd Amendment should be the only paperwork you need.
Nice- Knowingly selling a firearm to a "Prohibited Person" is punishable with Federal incarceration of no more than 10 years and $250K.
Still worth it?
Like I put in an earlier post on this subject:
Here is the only answer you need to relay to your friend: "C" on a 4473 form:
"Have you been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more
than one year, even if you received a shorter sentence including probation?"
I believe you stated that he had been jailed for 2 years for DUI correct? If so he is disqualified from purchasing a firearm.
And with the fact that you know of his situation it would be unlawful for you to sell a firearm to him.
Note that the question states "Could have imprisoned you for more than one year". Regardless even if he got off on probation, if he could have been imprisoned for more than a year it would fall under this point.
Colorado Statute aside, firearms are Federally regulated. If he or you are indicted it for sale/purchase to a prohibited person it would be a Federal indictment and Colorado law would have no jurisdiction.
You are wise to let a FFL handle the transfer. It takes you out of any and all liability. You exercised due diligence in the sale and would be held harmless.
Grow a set and sell him the damn firearm. You are a apparently a citizen and so is he. The 2nd Amendment should be the only paperwork you need.
"just do it" is not an answer in this situation...
P.S. You don't need to be a US citizen to buy/sell firearms.
Batteriesnare
12-12-2009, 22:17
Grow a set and sell him the damn firearm. You are a apparently a citizen and so is he. The 2nd Amendment should be the only paperwork you need.
This is the worst advice I've heard on this thread. While owning a firearm is a right, it is also includes responsibility, which includes who you sell your firearm to.
Jumpstart
12-13-2009, 08:01
I can totally appreciate CYA. I also appreciate common sense and freedom.
It is really simple. Ask "Can you legally own a firearm". If the answer is "no", no sale.
Maybe you better hire a lawyer on this one. (insert sarcasm) Geezus H.
Jumpstart
12-13-2009, 08:16
You are wise to let a FFL handle the transfer. It takes you out of any and all liability. You exercised due diligence in the sale and would be held harmless.
This exactly the type of steps that gun-banners want to cultivate with private citizens to achieve their goal.
Jumpstart
12-13-2009, 08:20
This is the worst advice I've heard on this thread. While owning a firearm is a right, it is also includes responsibility, which includes who you sell your firearm to.
I don't know if this was really advice or just more frustration at turning a simple transaction into a convoluted process. A process that further restricts citizens rights and cultivates these restrictions as normalities. I resist. Freedom isn't free.
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