I previously blogged about the Monumental Firearms Law related Decision from the Superior Court in relation to DUI. In Commonwealth v. Musau, 2013 PA Super 159, the Superior Court held that an individual who, during a first or second DUI, refused to provide blood or breath testing, could only be punished by a maximum of six (6) months in jail, although it is graded as a misdemeanor of the 1st degree. As the maximum sentence that could be imposed was six months, although graded as a misdemeanor of the 1st degree, such a conviction would not trigger the federal disability, pursuant to 18 U.S.C. 922.
While the Commonwealth filed a Petition for Review with the Pennsylvania Supreme Court regarding the Superior Court’s decision in Musau, which was docketed at 510 EAL 2013, the General Assembly acted and amended the law, which was signed by former Governor Corbett on October 27, 2014. As a result, SB 1239 effectively changed section 3802, so that the maximum sentence that can be imposed upon an individual who, during a first or second DUI, refuses to provide blood or breath testing, is five years, which consistent with most misdemeanors of the first degree.
BUT, the PA Supreme Court took no action on the appeal of the Superior Court’s decision in Musau. That is until June 10, 2015, when the Court DENIED the Commonwealth’s Petition for Review. This means that the Superior Court’s decision in Musau is still controlling.
Therefore, if you or a family member were convicted of a first or second DUI, where you/they refused to submit to chemical testing, you may have the ability to petition the court to have your conviction properly reflect the sentencing, which could not be punished by more than six (6) months and therefore would not trigger a state or federal firearms disability. Under the Post-Conviction Relief Act, time is LIMITED.
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Published by Joshua Prince, Esq.
With our 2nd Amendment rights being attacked at both the Federal and State level, and the ATF (Burea of Alcohol, Tobacco, Firearms, and Explosives) trying to close down FFLs (Federal Firearms Licensees) for minor infractions while making FFLs the scapegoat when the ATF's records are inaccurate, I want to take this opportunity to introduce myself. I am one of only a handful of attorneys across the US that practices in the niche area of law known as firearms law. I decided to concentrate my legal practice on firearms law not only because I am a shooter and firearms enthusiast, but also to ensure that our inalienable Right to Keep and Bear Arms is never encroached upon.
I handle cases at the Federal and State level for both FFLs and individuals. At the federal and state levels for individuals, I actively defend the 2nd Amendment of the US Constitution and Section 21 of the PA Constitution, as well as, help individuals with:
- License to Carry Firearms Denials;
- Challenges to Erroneous PICS Denials;
- Relief from Firearms Disabilities;
- Estate Planning Advice;
- Gun/NFA Trusts; and
- 42 USC 1983 Actions for Deprivation of Civil Rights
At both the state and federal levels, I represent FFLs and SOTs throughout Pennsylvania and the US regarding:
- ATF Compliance Inspections;
- Warning Letters and Hearings;
- FFL Revocations;
- Corporate Structure Advice
- Indoor/Outdoor Range Implementation; and
- Forfeiture Proceedings
In following my love for firearms and firearms law, I have taught several Continuing Legal Education (CLE) seminars on Firearms in Estates and Trusts and Firearms Law 101 for several Bar Associations, including Berks, Cumberland, and Dauphin Counties. I also planned and taught several Firearms in Estates CLE classes for the Pennsylvania Bar Institute (PBI).
While at Widener Law School, I was a member of the Widener Law Journal. I wrote an article on the Inaccuracy of the National Firearms Registration and Transfer Record (NFRTR). I also had an article published on Fee Disputes in Workers Compensation cases in the Widener Law Journal, Volume 18, No. 2.
You can often find me posting on several internet forums, including Subguns, Uzitalk, AR15, and PAFOA. I also hold PA Firearms Law classes for local ranges to inform the public on the firearm laws of the Commonwealth.
Following in my father's footsteps, I am also a Board member for the Pottstown Police Athletic League (PAL).
View all posts by Joshua Prince, Esq.
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