Appeal Your NICS Denial

Gun RightsFinally, there is some great news for people whose Second Amendment (2A) rights were improperly denied. The FBI’s The National Instant Criminal Background Check System (NICS) website again has an appeals page. Many firearms owners and hopeful gun purchasers were wrongly denied gun purchases following their NICS check. For the last year, these people had no opportunity to appeal… Until now. If you were denied a purchase, you can appeal your NICS denial.

Halting Gun Sales

In October 2015, NICS’s appeals workers were transferred to other positions within the organization. People who were denied the purchase of a firearm had no recourse. The NRA and other 2A organizations and authorities decried the transfer of employees as a backhanded attempt at preventing legitimate firearms purchases by eligible citizens.

Would be purchasers were out of luck. They could file an appeal, but there were no employees to process the appeal. Those appeals kept rolling in and piling up as frustrated purchases took what steps they could to correct the improper denial of their 2A rights.

Reclaiming Firearms Rights

We’re almost out of the woods now. People who appealed their NICS firearms purchase denial now have a chance at relief. Those who have recently been denied, should feel encouraged to appeal the NICS finding of ineligibility to purchase a gun. Unfortunately, there is still a year and  a half backlog of previously filed appeals.

If you were denied a firearm purchase following your NICS check, there are some things you need to know and do. Make sure that you get any information about the denial that you can. FFLs should give you whatever information they received, which generally isn’t much, but it will help you start the appeal process.

The next thing you’ll want to do is visit the FBI NICS information website here. It’s a pretty easy site to navigate, and it will help you get the information you need to file an appeal. You can definitely start the process on your own, and if you are again denied, you may want to contact an attorney to help you out.

If you have any 2A questions, call the attorneys at Durflinger Oliver & Associates for a free consultation, (253)683-4180.

False-Confession-Lawyer

Lautenberg and Gun Rights

2A Rights

2A Rights and Lautenberg

The Lautenberg Amendment to the Federal Gun Control Act of 1968 became effective in 1996,  and makes it a felony for anyone convicted of a “misdemeanor crime of domestic violence” (DV) to ship, transport, possess, or receive firearms or ammunition. There is no exception for military service members or military issued weapons. The Amendment also makes it a felony for anyone to sell or issue a firearm or ammunition to a person with certain DV convictions, regardless of rank.

What is a qualifying conviction?
A “misdemeanor crime of domestic violence” conviction is a qualifying conviction under the Lautenberg Amendment. The Amendment itself does not provide any additional guidance on determining what qualifies as a crime of domestic violence, but each of the armed services has published regulations that are all very similar. For example, the Marine Corps in MARADMIN 186/03 defines a crime of domestic violence as follows:

Crime of domestic violence means an offense that has as its factual basis the following elements: (1) the use or attempted use of physical force, or threatened use of a deadly weapon; (2) committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shared a child in common, by a person who has cohabitated with the victim as a spouse, a parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim(s).

What effect does this have on your military career?
If you serve in the armed forces, a qualifying conviction signals your inevitable separation from the military.  In other words, if you are convicted of a domestic violence offense at a special or general court-martial, you will be processed for separation.  Administrative forums such as non-judicial punishment (NJP) do NOT trigger Lautenberg.  If, however, you are going to a court-martial, be sure to ask your attorney about the Lautenberg Amendment and how it can affect you.  It is normally not part of any pre-trial agreement, so ask your domestic violence attorney about it before entering into an agreement to plead guilty.

What about simple assault conviction that isn’t domestic violence? 
Almost every state has specific provisions for domestic violence offenses. Many civilian court defendants plead guilty to a simple assault charge instead of a domestic violence offense to avoid a DV conviction. Unfortunately, even a simple assault conviction may qualify as a “misdemeanor crime of domestic violence” for purposes of the Lautenberg Amendment. Many attorneys are not aware of this and do not appreciate the impact such a conviction will have on a service member. Military policy is to look at the factual basis of the offense. If that factual basis meets the definition, it will be a qualifying conviction regardless of what the civilian court calls the offense.

What about a Stipulated Order of Continuance, or Deferred? 
There are Washington alternatives to a guilty conviction. Stipulated Orders of Continuance (SOC) and Pre-Trial Diversion Agreements (PDA) are mechanisms by which someone can avoid a criminal conviction. These resolutions generally involve probation, treatment programs, and/or some type of community supervision (probation). If all the conditions are met for the allotted time handed down by the court, then the charge will be reduced or dismissed. If the charge is dismissed, then the Lautenberg Amendment will not apply as the charge did not result in a conviction. However, if the accused does not satisfy the court’s requirements during the probationary period, then the charge will not be dismissed and a conviction will be entered. At that point the Lautenberg Amendment will apply.

What will happen if you have a qualifying conviction? 
If you have a qualifying conviction, you cannot possess a firearm or ammunition. If your command suspects that you may have a qualifying conviction, they are obligated to immediately secure your access to any government issued firearms or ammunition, unless you are deployed. Your command is also required to secure any privately owned firearms or ammunition kept in government housing or the base armory. You will then be referred to the command’s staff judge advocate (SJA) to determine if you have a qualifying conviction. If you do, you will be unable to complete annual training requirements that will require the use of firearms or ammunition (e.g., marksmanship training). Your command may also consider you non-deployable. Major military weapons, or crew-served weapons, are not considered to be firearms for the purposes of the Lautenberg Amendment and you may still work on and around those items.

If you are in the armed services, a qualifying conviction under the Lautenberg Amendment can end your career and result the loss of almost all of you benefits. So, before sign what you think is a “good deal” make sure you are asking the right questions. Ask about the Lautenberg Amendment and how your conviction can affect your military career. If you have any questions, you can trust the attorneys at Durflinger Oliver & Associates to protect you, your career and your family. Call today for your free consultation. 

Call Us 253-683-4180

Durflinger Oliver & Associates PS

711 St. Helens Ave.
Suite 209

Tacoma, WA 98402

Fax: 253-683-4184

Email: jim@durflingeroliver.com

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James E. Oliver, Esq.

James E. Oliver, Esq.

James Edmund Oliver, Jr. is a criminal attorney with over 15 years of experience representing defendants in serious criminal cases. Some of the more common charges he defends against are drugs, firearms, assault, and theft. James completed his legal studies at Seattle University School of Law where he graduated in 1998 with a Juris Doctor degree. Jim has established himself as respected and zealous advocate for a wide variety of clients.

Get Your Gun Rights Back!

Gun Rights Attorneys

Restore Your Gun Rights.

If you’re reading with a gun nearby, and a felony, or DV conviction in your past, be careful! In Washington State, any felony conviction and some misdemeanor DV convictions will result in a loss of the right to possess a firearm. It doesn’t matter whether your conviction has been vacated, or whether the charge was dismissed under some deferral program in a plea deal.  As far as cops and prosecutors are concerned, the conviction still prohibits being around guns.

Restoration of 2A rights can be accomplished by way of a Pardon, Annulment, Certification of Rehabilitation, or an order restoring the right to possess firearms from a superior court. This last method is the most commonly used.

A Superior Court will generally issue an order restoring gun rights for an eligible person who makes such a request.  Here are the basics: Ten years have elapsed since you satisfied all the obligations of a Class B felony conviction, and five years have elapsed since you satisfied all the requirements of a Class C felony conviction (three years if the conviction was for a misdemeanor), and there are no pending criminal charges or arrest warrants.  And, of course, the person must not be prohibited from firearm possession due to some other factor unrelated to the old conviction, such as a mental-health commitment, or a court order that limits firearm rights, such as a protection order, restraining order, or no-contact order. For misdemeanor cases, all conditions of the sentence must be successfully completed.

Some offenses are so serious that a convicted person can never restore firearm rights.  These are the sex offenses and Class A felonies, such as homicide, robbery, and other violent crimes.

In Washington, if an eligible person asks (petitions) a Superior Court judge to restore firearm rights, the judge must grant the request.  It’s mandatory.  The judge cannot refuse the request just because the judge thinks the applicant is a bad actor.  On the other side of the coin, the judge cannot grant the request of an ineligible person just because the person has a long list of accomplishments and a fistful of character references.  This is a pass/fail test.  The applicant either meets the criteria or he doesn’t.

The gun rights attorneys at Durflinger Oliver & Associates are dedicated to helping put firearms back into the hands of qualified people. Call us today for your free consultation.

~ Martha McLaughlin, Sr. Associate

 

Vacating A Misdemeanor Conviction (Clean Up That Record!)

Expungement, expunge, Vacate

Clean Up Your History!

Who doesn’t love a good vacation? Nobody! Everybody loves vacation. This is especially true if you were ever convicted of a crime!

In Washington State, The process of removing a misdemeanor conviction from your criminal history is called vacation. Vacating a conviction has requirements, and it can be done only once in a lifetime on your most recent charge.

Here’s how it works:

  1. The court vacates the judgment and sentence and then dismisses the charge(s) against you.
  2. This gets rid of your conviction.
  3. Once your conviction is vacated, you can honestly say that you were never convicted of the crime.
  4. The conviction is removed from the defendant’s criminal history.
  5. The vacate order is sent to the WSP and FBI, which then update their databases.
  6. Record of the conviction may not be disclosed to any person except other criminal justice enforcement agencies.

While certain rules apply to determine whether a person qualifies to have a conviction vacated, it is important to remember that any decision to vacate a conviction is up to the judge. Generally, if you’ve done what you’re supposed to, the judge will vacate your crimes.

Washington State has several laws dealing with the ability to vacate an adult criminal conviction. Each applies to a specific type of case. Each has its own unique set of factors you must meet to vacate a conviction. In most instances the judge has the discretion to grant or deny a request to vacate a conviction.

RCW 9.94A.640 – Felony Convictions

Washington law allows a person to vacate most class B and C felonies. Class A felonies, violent crimes, and crimes against persons may not be vacated. For class B felonies, you must wait ten (10) years to vacate after receiving a Certificate of Discharge. For class C felonies, you must wait five (5) years. During this time you must not have any criminal convictions of any kind. It is possible to vacate more than one felony conviction.

RCW 9.96.060 – Misdemeanor and Gross Misdemeanor Convictions

Generally, a person must wait 3 years after completing all conditions of sentence to become eligible to vacate a non-DV conviction. For domestic violence offenses, you must wait 5 years after paying off your legal financial obligations, completing probation, treatment, etc. In 2012, the Legislature changed this law to require persons with a DUI reduced conviction (Negligent Driving, Reckless Driving, or Reckless Endangerment) to wait ten years. Certain crimes, like DUI’s and sex crimes, cannot be vacated. You must wait five (5) to vacate domestic violence crimes. You must meet several more requirements to be eligible to vacate a conviction. Unlike the felony law, you may only vacate a single misdemeanor conviction from your record.

If you have any questions about cleaning up your criminal history, you can trust the attorneys at Durflinger Oliver to meet with you for free and explain all your options. We offer a military discount and easy payment plans.

~ Martha McLaughlin, Sr. Associate