I often receive inquiries from clients regarding whether a 3rd DUI prevents him/her from being able to purchase, possess and own a firearm. While it will depend on the date of conviction, as the DUI Grading statutes have changed, since February 1, 2004, the current grading has been in effect and which would at least prohibit you under federal law, if not also under state law.
Recently, the Pennsylvania Commonwealth Court heard the appeal of a Pennsylvania State Police (PSP) Denial of Mr. Richard Perkoski, in the matter of Perkoski v PSP. The issue before the Court was “whether the PSP accurately deemed Perkoski’s 2001 conviction for driving under the influence of alcohol (2001 DUI) a misdemeanor of the first degree, which precludes him from possessing a firearm.” As for some background, Mr. Perkoski was convicted of DUI offenses in 1998, 1990, 2001, and 2002. In 2009, he attempted to purchase a firearm and was denied, as the Pennsylvania Instant Check System (PICS) reported that Mr. Perkoski was ineligible to purchase firearms due a disqualifying conviction. He then filed a (PICS) Challenge, where the PSP reaffirmed its denial under 18 U.S.C. 922(g)(1), alleging that the offense was misdemeanor offense punishable by more than two years.
Mr. Perkoski then appealed to the Office of the Attorney General, where an Administrative Law Judge (ALJ) heard his appeal. The ALJ affirmed the PSP’s determination. Mr. Perkoski then appealed to the Commonwealth Court, which found that under the DUI statutes that were in effect at the time of is 2001 conviction, the applicable grading of the conviction was a misdemeanor 1. Since the maximum sentence for a misdemeanor 1 is five (5) years, he would be prohibited under 18 U.S.C. 922(g)(1).
However, while the court spent time explaining the difference between the grading and penalty portions of the DUI statute, the court seems to have glossed over whether the previous DUI grading section, 75 PA.C.S. 3731(e)(1), imposed any maximum sentence, short of the maximum sentence imposed by a misdemeanor 1. While it is unlikely that the legislature limited the maximum penalty, it is a possibility and unfortunately, I do not have a copy of 75 PA.C.S. 3731, as it has since been repealed.
The interesting aspect to this case is that while under the current law, specifically 75 PA.C.S. 3801 et seq., a second offense has the possibility of resulting in a misdemeanor 1 (if it is of the highest rate), under 3731(e)(1), a second offense was only punishable by a misdemeanor 2. Hence, whether a second DUI is prohibiting, will depend on when the conviction was entered and under what grading.
If you have questions regarding whether you are prohibited due to a DUI conviction or have other Firearms Law issues, contact us today to discuss your rights.