DUI Convictions and Gun Ownership

Pennsylvania state law and federal law differ with respect to effect of a DUI conviction on a person’s right to purchase and own a firearm.

Under Pennsylvania law, a “person who has been convicted of driving under the influence of alcohol or controlled substance . . . on three or more separate occasions within a five-year period” is prohibited from obtaining a firearm in Pennsylvania. 18 Pa.C.S. § 6105(c)(3).

Under the Federal Gun Control Act of 1968 (the “FGCA”), however, a person may not purchase a firearm if he “has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.” The FGCA does not simply apply to federal crimes — the Act refers to “any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U.S.C. § 921(a)(20)(B).

Significantly, with respect to gun ownership, certain Pennsylvania DUI convictions are graded as a misdemeanor of the first degree (“M-1”) which is punishable by up to five years of imprisonment. For example, second-offense DUI convictions within a 10-year period which are in the highest tier (that is, with a blood alcohol content of .016 percent or higher or with drugs in the system) are graded as M-1s. And, most third-offense DUIs — even outside of the 10-year window — are graded as M-1s.

This means that if a person receives a second DUI in a 10-year period which is graded as a misdemeanor of the first degree, he or she WOULD be eligible to purchase a firearm under Pennsylvania law but WOULD NOT be allowed to purchase a firearm under the Federal Gun Control Act.

This difference was challenged recently in a case heard in Pennsylvania Commonwealth Court (in an unpublished opinion). In that case, a person’s (the “Applicant’s”) application to the Pennsylvania State Police to purchase a firearm was denied because of a prior conviction for DUI, graded as a first-degree misdemeanor. The Applicant would have been eligible to purchase a firearm under state law (because he did not have three DUIs in a five-year period), but his application was denied because of the state police interpretation of federal law (on a theory that the second DUI was graded as an M-1).

The Applicant appealed the decision of the state police to the Pennsylvania Commonwealth Court (an appeals court that reviews decisions of administrative agencies). The Commonwealth Court denied the appeal, essentially deciding that the state police had made the correct decision. The Commonwealth Court concluded that the state police was required to determine whether the gun applicant was precluded from purchasing a firearm “not only under state law but federal law as well”. Because the applicant was disqualified from purchasing a firearm under the Federal Gun Control Act, it did not matter that he would otherwise be permitted to purchase a firearm under state law.

About the Author

Henry Hilles