Under North Carolina DWI laws, the maximum punishment for violations of N.C.G.S. 20-138.1 were increased from two (2) to three (3) years in 2011. As a result, any defendant convicted of even a misdemeanor DWI but sentenced at the most serious level—Aggravated Level One—are now prohibited from possessing firearms under federal law. This new reality is because federal law prohibits possession of a firearm by any person who has been convicted of a crime punishable by imprisonment for a term exceeding one (1) year. However, State law misdemeanors that are punishable by a term of imprisonment of two (2) years or less are excluded from the list of disqualifying convictions. North Carolina DUI laws set up a statutory single offense of “driving while impaired.” Conviction or plea subjects a defendant to varying levels of punishment (Aggravated Level 1 to Level 5). A single law as opposed to having six (6) separate offenses is what confuses the issue. As a result, there is now a legal question of whether any defendant convicted of misdemeanor DWI on or after December 1, 2011, may lawfully possess a firearm, regardless of the level actually imposed. A person found guilty is subject to the usual DUI penalties but may now also inadvertently find themselves in violation of federal gun laws. Few individuals know about this little known and little publicized consequence of simply having a drink with dinner or beer with friends. But everyone knows how serious any violation of federal law can be, especially when it involves a gun.
Possession of a Gun After DUI
Federal gun laws in this arena are more commonly referred to as “felon-in-possession” statutes under 18 U.S.C. § 922(g)(1). Such description can be misguiding as some misdemeanor convictions, punishable by more than two years imprisonment under state law, may also prohibit a person from possessing a firearm. Section 922(g)(1) clarifies and makes it unlawful for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” to possess a firearm. However, another provision, 18 U.S.C. § 921(a)(20), defines “crime punishable by imprisonment for a term exceeding one year” to exclude “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.” Thus, the question of whether a person convicted of a misdemeanor under State law are disqualified from possessing a firearm under 18 U.S.C. 922(g)(1) is determined by whether the misdemeanor for which they were convicted carries a maximum punishment of more than two (2) years. If so, the person cannot legally possess a gun after a DUI conviction. Thus, in North Carolina, there appears to be a potential open question when it comes to buying, owning, or possessing a gun after DUI, except for Aggravated Level 1 convictions.
Currently, there is no final pronouncement by appellate decisions. However, we can get some guidance from the Fourth Circuit’s analysis in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). On the issue of whether convictions under the State’s structured sentencing laws qualify as offenses “punishable by imprisonment for more than one year,” Simmons reads to support the position that only a defendant who is actually punished at Aggravated Level One is disqualified under § 922(g)(1). The court in Simmons held that the defendant’s conviction for a Class I felony offense was not a disqualifying conviction for an offense punishable by imprisonment for a term exceeding one (1) year. Given Simmons’ lack of prior criminal history, he could receive only a sentence of eight (8) months’ community punishment. Even though a different defendant with a prior criminal conviction record could have received a sentence exceeding a year of imprisonment, the defendant here was not facing such legal jeopardy. The court further explained that the “mere possibility” (emphasis added) that Simmons could have been convicted of a crime punishable by more than one year’s imprisonment does not mean that he would actually be convicted of such a crime. In a subsequent unpublished opinion, the Fourth Circuit in United States v. Carter, 471 Fed. Appx. 136 (4th Cir. 2012) (unpublished op.), applying the principles of Simmons, held that a defendant’s prior drug offense convictions, although classified as felonies under North Carolina’s structured sentencing rules, were still not offenses punishable by a term of imprisonment exceeding one (1) year for purposes of the federal “felon-in-possession” statute.
In sum, most crimes which can result in imprisonment of one (1) year or more will make it unlawful for an individual to possess a firearm. However, the federal laws allow for exemptions of certain State related misdemeanor charges, including DUI, that have maximum punishments of two (2) years or less. Under current North Carolina DWI laws, a person convicted or who pleads to an Aggravated Level 1 DUI charge will be barred from legally possessing a firearm under federal law. As for other charges, the courts will apply the law to what is actually sentenced and not make a determination based only on what may be given. Possibility is not sufficient. What sentence is imposed is now determinative. So just how easy is it to find yourself with an Aggravated Level 1 offense. Just have a glass of wine or a quick drink before you pick up your children on the way home. A simple speeding ticket stop can quickly turn into a DWI investigation after the officer smells alcohol. And because your have persons under the age of 18 in the vehicle, you are looking at an Aggravated Level 1 punishment, up to one (1) year in jail, and loss of your ability to legally possess a gun after DUI.
As a Charlotte DWI defense attorney, I often ponder if the legislature truly intends or even envisions these type of dire results when they create these statutory constructs. Even though these laws are clearly draconian, no lawmaker, at least one who wants to remain a lawmaker, can even suggest something that might be portrayed as being helpful to those menacing “drunk drivers.” Of course, those of us who defend the hapless impaired driver know and appreciate the dreadful, and hopefully unintended, consequences of these ever harsh laws. But for now, too many drivers who have caused neither accident or injury to no one will pay a heavy, far reaching price for merely consuming a legal beverage before heading home to their families. The law is supposed to be fair and just. The current DWI scales are out of balance and should be adjusted to fit the crime.