NEWSROOM Third Circuit: a nonviolent DUI conviction alone isn't enough to disarm under federal law

[CAguns-News]

Federal law already bars gun possession by anyone convicted of a crime punishable by more than a year. On Oct 13 the Third Circuit, en banc, said that bar can't reach a nonviolent DUI conviction but still reaches violent threats. California follows the Ninth Circuit, so nothing changes here yet.

Read the full article on CA2A.com

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What does this change mean for California firearm owners? Discuss below.

CA2A Newsroom · AI-generated editorial illustration. Educational information, not legal advice.

 

[CadeH]

It feels like every year California passes new laws that expand what misdemeanors result in 5-10 year gun bans, and they're nearly always nonviolent offenses. 9th won't overturn them but precedent in other courts doesn't hurt us.

 

[Shellbackitup]

Interesting read.

Multiple DUI's should absolutely affect/disqualify your ability to be licensed to drive. But having a non-violent and non-gun related offense affect your right to bear arms, does indeed seem a stretch.
The other case was regarding a carjacking where the felon threatened to kill the driver. His rights were not restored.

 

[Shellbackitup]

It feels like every year California passes new laws that expand what misdemeanors result in 5-10 year gun bans, and they're nearly always nonviolent offenses. 9th won't overturn them but precedent in other courts doesn't hurt us.

100% agree. While it doesn't affect the 9th or CA laws, the precedent could prove useful if a case from CA/9th is appealed all the way up.

 

[Skilly]

maybe not disarm, but it certainly impacts your CCW access.

 

[dvoncock]

Having handled hundreds of DUI cases, I’m kind of on the fence about this (emotionally speaking).

Constitutionally speaking, stripping someone of their 2A rights for a misdemeanor DUI is questionable for sure.

But the reality is that anyone who drives with a 0.08% or more BAC has demonstrated monumentally poor judgement because even a 0.08% is really, Really, REALLY drunk.

I shudder thinking about people stupid enough to get popped for DUI with a 0.16% or 0.24% BAC (terrifyingly common, BTW) having firearms

 

[RustVendor]

Having handled hundreds of DUI cases, I’m kind of on the fence about this (emotionally speaking).

Constitutionally speaking, stripping someone of their 2A rights for a misdemeanor DUI is questionable for sure.

But the reality is that anyone who drives with a 0.08% or more BAC has demonstrated monumentally poor judgement because even a 0.08% is really, Really, REALLY drunk.

I shudder thinking about people stupid enough to get popped for DUI with a 0.16% or 0.24% BAC (terrifyingly common, BTW) having firearms

I agree with your statement except .08 is not very drunk at all, you can hit that with 2 5% beers if you drink them under an hour depending on your own alcohol metabolism. A small person could be over .08 with a single cocktail if it was just a little "strong" and I would say almost everyone here has driven over the limit many times in their life if they drink at all. When boomers drive home after thanksgiving all slow they are likely deep into the .10s. Like if you have been drinking at all you might be over that and not feel particularly drunk. That said I do question a DUI being "nonviolent", there's something like 12000 people killed by drunk drivers every year. Does that inherently mean you would have poor judgement with firearms? not necessarily but it's a grey area and it's really really dumb to drink and drive.

 

[Skilly]

I agree with your statement except .08 is not very drunk at all, you can hit that with 2 5% beers if you drink them under an hour depending on your own alcohol metabolism. A small person could be over .08 with a single cocktail if it was just a little "strong" and I would say almost everyone here has driven over the limit many times in their life if they drink at all. When boomers drive home after thanksgiving all slow they are likely deep into the .10s. Like if you have been drinking at all you might be over that and not feel particularly drunk. That said I do question a DUI being "nonviolent", there's something like 12000 people killed by drunk drivers every year. Does that inherently mean you would have poor judgement with firearms? not necessarily but it's a grey area and it's really really dumb to drink and drive.

This is good perspective - I spent several years running bars and nightclubs and can attest. the trouble with the number is it is arbitrary. Ive seen people who sniff a bottle cap and shouldn't touch a wheel and people several drinks in that frankly, short of the wafting smell of alcohol, there wouldn't be a single tell they are drunk.

Society has finally turned the corner and associated the risk or driving and alcohol, but I still remember the term "road pop". Even today, I can be at a working lunch being asked if we would like a round of drinks to start off...Alcohol is very much a part of the culture. The counter to it, is that its not socially acceptable to jump into a car and drive now, and with the readiness of options like Uber and Lyft, there is just zero reason to risk loss of life. Taking a chance at this stage does, without a doubt, demonstrate very poor judgement.

 

[dvoncock]

I agree with your statement except .08 is not very drunk at all, you can hit that with 2 5% beers if you drink them under an hour depending on your own alcohol metabolism. A small person could be over .08 with a single cocktail if it was just a little "strong" and I would say almost everyone here has driven over the limit many times in their life if they drink at all. When boomers drive home after thanksgiving all slow they are likely deep into the .10s. Like if you have been drinking at all you might be over that and not feel particularly drunk. That said I do question a DUI being "nonviolent", there's something like 12000 people killed by drunk drivers every year. Does that inherently mean you would have poor judgement with firearms? not necessarily but it's a grey area and it's really really dumb to drink and drive.

I respectfully disagree.

Alcohol metabolization depends, primarily, on body weight and, to a lesser extent, on sex. It takes the “average” male 4-5 “standard drinks” (meaning, for beers, 12 ounce, 5% ABV; for wines, 5 ounce, 12%; or for hard liquor, 1.5 ounces, 80 proof) over two hours to reach 0.08% BAC. For the “average” females, it the same, except 3-4 “standard drinks.”

I agree that the clinical “standard drink” framework is not especially helpful in a real world full of high ABV microbrew and bucket-sized happy hour margaritas. But, from a scientific standpoint, 0.08 is pretty dang sauced; the science shows that alcohol starts imparting executive functioning and motor coordination north of 0.04% BAC.

Also—and please understand that I do not mean this as a personal insult to you or anyone else—but, from what I could tell, virtually every client who ever told they “really couldn’t feel” the effects of alcohol at 0.08% was probably an alcoholic or, at least, had an an extremely unhealthy/abnormal relationship with drinking.

 

[RustVendor]

I respectfully disagree.

Alcohol metabolization depends, primarily, on body weight and, to a lesser extent, on sex. It takes the “average” male 4-5 “standard drinks” (meaning, for beers, 12 ounce, 5% ABV; for wines, 5 ounce, 12%; or for hard liquor, 1.5 ounces, 80 proof) over two hours to reach 0.08% BAC. For the “average” females, it the same, except 3-4 “standard drinks.”

I agree that the clinical “standard drink” framework is not especially helpful in a real world full of high ABV microbrew and bucket-sized happy hour margaritas. But, from a scientific standpoint, 0.08 is pretty dang sauced; the science shows that alcohol starts imparting executive functioning and motor coordination north of 0.04% BAC.

Also—and please understand that I do not mean this as a personal insult to you or anyone else—but, from what I could tell, virtually every client who ever told they “really couldn’t feel” the effects of alcohol at 0.08% was probably an alcoholic or, at least, had an an extremely unhealthy/abnormal relationship with drinking.

you are saying 2 hours but the charts are based on one hour. But according to this any female under 180lbs would be over the limit with more than drinks and some of them will be over with only 2 drinks. The way they make drinks a lot of people could literally be over with one "drink" because it's 2 4.2% beers and half the beers these days are 6-8%. I've played with breathalyzers quite a bit and it's just very dependent on your own metabolism, I'm well over 200 lbs and blew a .0.05 with a single shot of whiskey. 0.08 really isn't very high it's just a couple drinks during dinner (less than an hour) or a few over an hour for the vast majority of people. I know exactly how it feels for me and I feel absolutely ok driving in that state but I also know how bad the penalties are so I just don't.

https://angelaolsonlaw.com/wp-content/uploads/2014/01/08_BAC_Chart.pdf

 

[Tere_Hanges]

I think this is the only subject area where CA laws currently strike the right balance. One misdemeanor DUI does not result in losing gun rights. A fourth DUI within 10 years is a felony resulting in lifetime gun prohibition. Alcohol, DUIs, and guns are a complex problem because not all cases/people are the same. There are plenty of alcoholics with no DUIs. And alcoholism or irresponsible drinking may be a symptom of a more serious behavioral/mental health problem. But not all people with DUIs or who drink too much from time to time have serious mental health issues. There are people who take longer to grow up and have 1 or 2 DUIs in their 20s, learn from their mistakes, change, and become some of the most responsible people in society. I have several family members with multiple DUIs. One of them is super responsible, is an engineer, has SBRs, suppressors, and works in a gun shop, not in CA. The other one is a little unstable, and I would not want them to own a gun. The difference between those two people is that the responsible person had DUIs in their 20s, realized they couldn't handle alcohol, and never drank again. The other person had DUIs in their 20s, ignored the issue and got another DUI in their 30s. I also have a friend from college who is the worst alcoholic I've ever known and has driven many times drunk, and he doesn't have any DUIs. Although he did get 5150'd by his family when he took a bunch of pills and wrote a "suicide" note. My sister got drunk in college and wrecked her car along the side of the freeway off-ramp, called her friend to pick her up, and got off scot-free. When it comes to alcohol and losing gun rights there should be more criteria than just 1 or 2 DUI convictions. That being said, with ridesharing apps that werent around 20 years ago, there is even less of an excuse for drinking and driving.

 

[Gawernator]

I respectfully disagree.

Alcohol metabolization depends, primarily, on body weight and, to a lesser extent, on sex. It takes the “average” male 4-5 “standard drinks” (meaning, for beers, 12 ounce, 5% ABV; for wines, 5 ounce, 12%; or for hard liquor, 1.5 ounces, 80 proof) over two hours to reach 0.08% BAC. For the “average” females, it the same, except 3-4 “standard drinks.”

I agree that the clinical “standard drink” framework is not especially helpful in a real world full of high ABV microbrew and bucket-sized happy hour margaritas. But, from a scientific standpoint, 0.08 is pretty dang sauced; the science shows that alcohol starts imparting executive functioning and motor coordination north of 0.04% BAC.

Also—and please understand that I do not mean this as a personal insult to you or anyone else—but, from what I could tell, virtually every client who ever told they “really couldn’t feel” the effects of alcohol at 0.08% was probably an alcoholic or, at least, had an an extremely unhealthy/abnormal relationship with drinking.

Yeah I agree, one of the big effects is that operators cannot detect their own level of impairment so they feel like they are fine. We really hammer that in motorcycle classes. I've never ridden even buzzed, just a stupid risk to take and easy to make one mistake and crash. I'd rather not have to rely on an elite skill level to barely survive. Skilled drivers/riders use expert judgement to avoid needing to use expert skills

 

[dvoncock]

you are saying 2 hours but the charts are based on one hour. But according to this any female under 180lbs would be over the limit with more than drinks and some of them will be over with only 2 drinks. The way they make drinks a lot of people could literally be over with one "drink" because it's 2 4.2% beers and half the beers these days are 6-8%. I've played with breathalyzers quite a bit and it's just very dependent on your own metabolism, I'm well over 200 lbs and blew a .0.05 with a single shot of whiskey. 0.08 really isn't very high it's just a couple drinks during dinner (less than an hour) or a few over an hour for the vast majority of people. I know exactly how it feels for me and I feel absolutely ok driving in that state but I also know how bad the penalties are so I just don't.
View attachment 266663

https://angelaolsonlaw.com/wp-content/uploads/2014/01/08_BAC_Chart.pdf

Estimating BAC involves multiple variables. First, it takes time for alcohol to metabolize into the system and yield a BAC reading. There is no scientifically validated average rate at which alcohol metabolizes into the system. Second, there is what we in the business call “shedding,” meaning the rate at which alcohol metabolizes out of the system, yielding a reduction of BAC. Shed rate varies wildly between individuals, but 0.015% per hour has been shown to be “average” in clinical settings. Where things get complicated is the interplay between the two primary variables. Shedding occurs regardless of whether some stops or keeps drinking. Your example of a 180-pound female would yield a BAC of approximately 0.086% to 0.089% after consuming four “standard drinks” in an hour, depending on her shed rate.

Regarding your experiments with breathalyzers, I’d be interested to know what brand you used and how long you waited between sips and blows. The commercially available versions are known to be inaccurate and especially vulnerable to mouth alcohol (which will affect all alcohol berth testing devices, btw).

 

[dvoncock]

Yeah I agree, one of the big effects is that operators cannot detect their own level of impairment so they feel like they are fine. We really hammer that in motorcycle classes. I've never ridden even buzzed, just a stupid risk to take and easy to make one mistake and crash. I'd rather not have to rely on an elite skill level to barely survive. Skilled drivers/riders use expert judgement to avoid needing to use expert skills

See my post below. An unfortunate physiological phenomenon is individuals’ varied rate of metabolizing alcohol into their system. A person can feel—and legally speaking—be fine when they leave the bar, but then become legally impaired while driving. In my experience, this happens a lot to youngsters and infrequent drinkers, which are both groups who tend to lack experience with alcohol.

 

[Gawernator]

See my post below. An unfortunate physiological phenomenon is individuals’ varied rate of metabolizing alcohol into their system. A person can feel—and legally speaking—be fine when they leave the bar, but the. become legally impaired while driving. In my experience, this happens a lot to youngsters and infrequent drinkers, which are both groups who tend to lack experience with alcohol.

And even when the BAC is highest and they're the most drunk, one of the intoxicating effects is overconfidence and inability to judge one's own level of impairment ironically

 

[dvoncock]

Don’t get me wrong, I love guns, performance cars, fine cigars, and a cold brewski. I just make sure to enjoy the first two separately from the last one

 

[RustVendor]

Estimating BAC involves multiple variables. First, it takes time for alcohol to metabolize into the system and yield a BAC reading. There is no scientifically validated average rate at which alcohol metabolizes into the system. Second, there is what we in the business call “shedding,” meaning the rate at which alcohol metabolizes out of the system, yielding a reduction of BAC. Shed rate varies wildly between individuals, but 0.015% per hour has been shown to be “average” in clinical settings. Where things get complicated is the interplay between the two primary variables. Shedding occurs regardless of whether some stops or keeps drinking. Your example of a 180-pound female would yield a BAC of approximately 0.086% to 0.089% after consuming four “standard drinks” in an hour, depending on her shed rate.

Regarding your experiments with breathalyzers, I’d be interested to know what brand you used and how long you waited between sips and blows. The commercially available versions are known to be inaccurate and especially vulnerable to mouth alcohol (which will affect all alcohol berth testing devices, btw).

so the average woman in the US would be over the limit with 2 IPAs after work or at lunch, the average man at 3. A lot of people are drinking that much and feel fine to drive home and they probably are fine but they are over the limit. .08 just is not that drunk. The average person is probably impaired, I'm not saying you should drive like that and they should raise the limit but the limit is pretty low considering how common it is for people to be over tat limit and still driving around.

 

[ButteFlyFisher]

so the average woman in the US would be over the limit with 2 IPAs after work or at lunch, the average man at 3. A lot of people are drinking that much and feel fine to drive home and they probably are fine but they are over the limit. .08 just is not that drunk. The average person is probably impaired, I'm not saying you should drive like that and they should raise the limit but the limit is pretty low considering how common it is for people to be over tat limit and still driving around.

Who is drinking 3 IPAs for lunch? That is crazy.

 

[dvoncock]

so the average woman in the US would be over the limit with 2 IPAs after work or at lunch, the average man at 3. A lot of people are drinking that much and feel fine to drive home and they probably are fine but they are over the limit. .08 just is not that drunk. The average person is probably impaired, I'm not saying you should drive like that and they should raise the limit but the limit is pretty low considering how common it is for people to be over tat limit and still driving around.

Well, the average man in the U.S. weighs about 200 pounds. Five “average” drinks at lunch or happy hour is 0.094, minus 0.015 of shedded BAC over that hour yields approximately 0.079%, so right at the legal line.

The average woman in the U.S. weighs about 172 pounds. Four “average” drinks in the scenario as above is 0.108, minus 0.018 of shedded BAC, yields approximately 0.09%.

If you have any cop friends, have them run you through field sobriety tests at a barbecue sometime after the number of drinks set by your weight to see. A legitimate 0.08% feels pretty drunk. Based on my bodyweight, four beers is enough to get me well over 0.08%, and I can absolutely feel it. I also attended a training seminar where we drank, blew a PAS, and performed FSTs. At a confirmed 0.08% I was BLASTED, although it’s possibly I'm just a soy boy too

 

[RustVendor]

Well, the average man in the U.S. weighs about 200 pounds. Five “average” drinks at lunch or happy hour is 0.094, minus 0.015 of shedded BAC over that hour yields approximately 0.079%, so right at the legal line.

The average woman in the U.S. weighs about 172 pounds. Four “average” drinks in the scenario as above is 0.108, minus 0.018 of shedded BAC, yields approximately 0.09%.

If you have any cop friends, have them run you through field sobriety tests at a barbecue sometime after the number of drinks set by your weight to see. A legitimate 0.08% feels pretty drunk. Based on my bodyweight, four beers is enough to get me well over 0.08%, and I can absolutely feel it. I also attended a training seminar where we drank, blew a PAS, and performed FSTs. At a confirmed 0.08% I was BLASTED, although it’s possibly I'm just a soy boy too

2 ipas means 32oz of 6.5% beverage that's the standard serving, that's well over three standard servings and people plow through that easily, I think you are vastly underestimating how much people drink. At my old job a bunch of people would go out on Fridays for lunch to a place that served a straight up double pint of double IPA so 32oz of 7.5% beer, I saw the IT guy tlgo through two of those at lunch more than a few times. He would go back and finish his day. I think you are basing the level of inebriation on your own experience and you just don't drink that much and there's definitely nothing wrong with that, alcohol sucks. But as I told you I have used breathalizers to test this as well and for me .080 feels like nothing, you don't even want to know what I've tested at we used to DRINK. I've always had a high "tolerance" but the BAC is independent of how an individual responds and how impaired they are.