Tag Archives: Driving under the influence

MONUMENTAL DECISION – Federal Court Rules It’s Unconstitutional to Strip Second Amendment Rights as a Result of a Second DUI

Today, Chief Counsel Joshua Prince and attorney Adam Kraut secured a major victory for Second Amendment jurisprudence in Holloway v. Sessions, et al., 1:17-CV-00081, where Chief Judge Christopher Connor of the Middle District of Pennsylvania ruled in a 21 page memorandum that it was unconstitutional as-applied to Mr. Holloway to preclude him in perpetuity from exercising his Second Amendment rights as a result of a 2005 DUI.

Specifically, after finding that DUI is a non-violent offense and calling the Defendants out in footnote 7 for their erroneous contention that “[f]orty-six states punish DUIs as felonies on a first or subsequent conviction,” the Court found that “[t]he government has not shown consensus regarding the seriousness of a generic second DUI offense, let alone a second DUI offense at a high rate of alcohol.” Thereafter, the Court went on to hold that “[a]fter a careful weighing of the Binderup factors, the court concludes that Holloway’s crime was not a ‘serious offense’ within the ambit of Section 922(g)(1).”

In turning to the second prong of Binderup, the Court held

The government has not satisfied its burden of proving that disarmament of Holloway, and other individuals like him, will promote public safety. It relies heavily on an expert report to support the proposition that individuals like Holloway “are substantially more likely to intentionally use firearms to harm others, inflict self-harm, and cause inadvertent harm. The expert report states that individuals with alcohol dependency or
abuse are more prone to violence and cites one study that suggests just over 50 percent of DUI offenders were alcohol dependent. (Doc. 61-4 at 4-5 & n.8). It further notes that alcohol abuse is often comorbid with mental illness and is strongly linked with domestic violence, youth violence, violent crime, and road rage. (Id. at 6-7). But nothing in the record suggests that Holloway was ever diagnosed with or suffered from alcohol dependence, alcohol abuse, or mental illness. Moreover, the report acknowledges that “it is not possible to determine with certainty whether these associations are causal.” (Id. at 6).

The Court then goes on to hold that “[t]he government has not demonstrated a substantial fit between Holloway’s continued disarmament and the important government interest of preventing armed mayhem.”

As such, the Court concludes:

Section 922(g)(1) is unconstitutional as applied to Holloway. Holloway’s disqualifying conviction was not sufficiently serious to warrant deprivation of his Second Amendment rights, and disarmament of individuals such as Holloway is not sufficiently tailored to further the government’s compelling interest of preventing armed mayhem. The court will grant summary judgment, declaratory judgment, and permanent injunctive relief to Holloway.

The accompanying Order declares:

AND NOW, this 28th day of September, 2018, upon consideration of the plaintiff’s motion (Doc. 58) for summary judgment pursuant to Federal Rule of Civil Procedure 56 and defendants’ motion (Doc. 60) to dismiss, or in the alternative, for summary judgment pursuant to Federal Rules of Civil Procedure 12 and 56, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. Plaintiff’s motion (Doc. 58) for summary judgment is GRANTED.
2. Defendants’ motion (Doc. 60) to dismiss, or in the alternative, for summary judgment is DENIED.

3. It is ORDERED and DECLARED that the felon-in-possession ban of 18 U.S.C. § 922(g)(1) is unconstitutional as applied to plaintiff Raymond Holloway, Jr. (“Holloway”) in violation of the Second Amendment to
the United States Constitution. Defendants, together with all those acting in concert with them, are ENJOINED from enforcing, directing enforcement, or permitting enforcement of the felon-in-possession ban of 18 U.S.C. § 922(g)(1) against Holloway.
4. The Clerk of Court shall enter declaratory judgment in Holloway’s favor on his Second Amendment claim, brought pursuant to Binderup v. Attorney General, 836 F.3d 336, 339 (3d Cir. 2016) (en banc), cert. denied 137 S. Ct. 2323 (2017), challenging the felon-in-possession ban of 18 U.S.C. § 922(g)(1) as applied to him, said judgment to be entered in accordance with paragraph 3.
5. The Clerk of Court shall thereafter close this case.

 

If your constitutional rights have been denied by the U.S. Government, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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US Supreme Court Decision Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

On June 23, 2016, the U.S. Supreme Court decided that case of Birchfield v. North Dakota, 14-1468, in which the Court held that while implied consent laws relative to driving under the influence (DUI) may impose civil penalties, it is unconstitutional for them to impose criminal penalties for refusing to consent.

Specifically, as the Syllabus to the decision declares:

Motorists may not be criminally punished for refusing to submit to a blood test based on legally implied consent to submit to them. It is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads. Pg 36-37

So how does this affect your firearm rights?

Under Pennsylvania law, if an individual refuses his/her consent relative to a second (or third) DUI, the criminal grading becomes a misdemeanor of the 1st degree, which is federally prohibiting for purposes of purchasing and possessing firearms and ammunition. I previously blogged about a similar situation in Pennsylvania, when the Pennsylvania Superior Court decided Musau. Unfortunately, as a result of the Superior Court’s decision, the General Assembly amended the statute, so that anyone who refused consent on a second (or third) DUI would be penalized by a misdemeanor of the first degree, instead of an ungraded misdemeanor (which would not be prohibiting under state or federal law).

As a result of the U.S. Supreme Court’s decision in Birchfield, those individuals in Pennsylvania who have been convicted or pled guilty to a misdemeanor of the first degree as a result of a second (or third) DUI, due to their refusal to consent, have been subjected to an unlawful sentence and have a limited opportunity to file for relief under Pennsylvania’s Post-Conviction Relief Act (PCRA).

Therefore, if you or a family member were convicted of a second or third DUI, where you refused to submit to chemical testing, contact us immediately, as you have the ability to petition the court to have your conviction properly reflect the grading as an ungraded misdemeanor, which would not trigger a state or federal firearms disability.

As Federal Firearms Relief is not currently available and the Pennsylvania Board of Pardons does not with any frequency grant pardons to those who have been convicted of repeat offenses, this may be your ONLY extremely limited opportunity to obtain relief!

Contact Us Today to Discuss YOUR Rights and How We Can Restore Your Right to Keep and Bear Arms – info@princelaw.com or 888-313-0416

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PA Supreme Court Decision in Musau Affects Firearms Rights – Ability to Obtain Relief from Certain DUIs!

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.

Contact Us Today to Discuss YOUR Rights – info@princelaw.com or 888-313-0416

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New DUI Law That Affects Firearms Rights

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.

Today, Governor Corbett signed SB 1239, which 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. Accordingly, those individual who are now convicted under the amended DUI Code will be prohibited under 18 U.S.C. 922 from possessing or purchasing a firearm, regardless of the sentence imposed.

Of course, there are constitutional questions of whether an individual’s Right to Keep and Bear Arms can be infringed in relation to non-violent misdemeanor crimes. If you have been convicted of a non-violent misdemeanor offense and wish to discuss what options you have to petition the federal courts or are facing a DUI related to a refusal to submit to chemical testing, contact us today.

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Supreme Court Protects Rights and Requires States to Obtain Warrant in DUI Stops

On April 17, 2013, the United States Supreme Court decided a case that has implications throughout the country. The case, Missouri v. McNeely, was based on a motorist who was stopped on suspicion of drunk driving and arrested. McNeely refused to take a breath test, but was then taken to a local hospital for a blood test. The subsequent test revealed that he had a blood alcohol level of .15, and he was charged with driving under the influence of alcohol.
McNeely moved to have the evidence suppressed, claiming that the police violated his Fourth Amendment rights. The Supreme Court, in an 8-1 decision, ruled that absent extraordinary circumstances, law enforcement must obtain a search warrant before compelling a driver to submit to a blood test. It rejected the notion that officers must act freely (and without warrants) because valuable evidence (specifically alcohol in a driver’s blood) dissipates quickly. (A link to the decision is at the bottom of this post.)
Aside form the obvious benefits to individuals charged with DUI, there are even more protections the Court has inferred upon individuals. If the police take your blood or urine without obtaining a warrant and it is found that extraordinary conditions did not exist, the police may be liable to the individual in civil court for violations of rights under 42 U.S.C. § 1983, commonly referred to as “section 1983” . This law provides, “Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress,…” In plain terms, an actor, working for the government is liable to the injured party when that actor deprived the individual of their rights.
Obviously, this change is important and every case or situation is different. If you or someone you know has been charged with a DUI/DWI, contact the Prince Law Firm immediately to protect your rights.

MISSOURI v. MCNEELY CERTIORARI TO THE SUPREME COURT OF MISSOURI
No. 11–1425. Argued January 9, 2013—Decided April 17, 2013

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