I’ve just been charged with a crime, can I still keep my firearm?
One of the most common questions that we receive as defense attorneys often concerns the lawful use of firearms. What most people do not know is that in Ohio, there are a number of crimes, even misdemeanors, that can theoretically ban someone from ever owning a firearm for the rest of their life.
In Ohio, if you have plead guilty to or have otherwise been convicted of a crime that carries a potential punishment of incarceration of over one year it can lead to a potential lifetime ban of lawful firearm possession.
Misdemeanors in Ohio are only punishable by up to six months, but a Domestic Violence conviction can impose the lifetime ban just like most felonies. More often than not, individuals who have simply been charged with Domestic Violence must give up any and all firearms pursuant to the temporary protection order that is automatically issued, and/or as a condition of one’s bond.
What happens if one has already plead or been convicted of such a crime? Is there any hope to regain those second amendment rights? As it turns out there are several mechanisms provided within the law that can restore an individual’s right to lawful gun ownership. Expungement and sealing of the recording, setting aside a criminal conviction, and even applying to a court for relief from a firearm disability are all avenues that and can and should be explored when dealing with such an issue.
What is the correct way to transport a firearm in Ohio?
In our practice we have seen countless otherwise completely law abiding citizens be charged with serious crimes from improperly transporting their firearms. Simply having a concealed carry license does not give an individual absolute freedom to transport a firearm as they see fit.
If a person does not have a concealed carry license, (In Ohio it’s referred to as a Concealed Handgun License, or CHL), they may not transport a loaded firearm in a vehicle when the firearm is accessible to that person without having to leave the vehicle. A person may however transport an unloaded firearm anywhere in the vehicle if the person may lawfully posses it to begin with, and the gun is in a closed package, box, bag, or case, or it is in a compartment that can only be reached by leaving the vehicle. We recommend that when a firearm needs to be transported, that the firearm be unloaded, in a closed box or case, and in the vehicle’s trunk.
If an individual does have the CHL, they may transport a loaded firearm on or about their person in a motor vehicle but additional duties apply. The individual must PROMPTLY inform any law enforcement officer who approaches the vehicle for any reason that they are in possession of a loaded firearm. An individual can be charged for failure to promptly notify. Secondly, that individual must follow each and every order from the officer, remain in the vehicle at all times unless directed otherwise, and must absolutely keep their hands in plan site. Failure to comply with any of duties can net an individual a criminal charge despite that person having a CHL.
It is Ohio law that no person shall have a loaded firearm in the vehicle if that person is intoxicated with either alcohol, drugs, or a combination of both. The standard is not impairment like in a DUI. Even one drink can be enough to be in violation of this Ohio provision. A positive urine or blood test for marijuana, cocaine, or any other controlled substance can run an individual afoul of Ohio’s gun laws.
What if I was unaware that a gun was in the vehicle?
Let’s say that you had to borrow a friend’s car to take a quick trip down the street. A officer pulls you over for a traffic violation, and in the process a loaded firearm that was not yours was discovered under the driver’s seat.
Although the statute the governs improper handling of firearms states that there is a “knowingly” element to the offense, in our experience the likely thing to happen would be for the officer to issue the criminal charges and let the courts sort out the situation. That is why it is imperative that you consult with an attorney experienced in these situations before setting foot in a court house.
What if I possess the firearm in a vehicle on my own private property?
There is an affirmative defense, meaning a set of facts that an individual charged with a crime must prove at trial, that the person had the firearm in a motor vehicle for a lawful purpose while the vehicle was on the own person’s property. This defense is only available if the person did not illegally transport the firearm immediately before arriving on their own property. If the person is under the influence of drugs, alcohol, or a combination of both, they can still be charged with a crime despite being on their own private property.
I am an avid hunter, are the rules different for transporting a rifle or shotgun?
Generally speaking we always recommend that any firearm be kept in a area separate from the passenger compartment of the vehicle, such as the trunk. However with rifles and shotguns an individual may transport a long gun if it is plain sight with the action open or stripped.
What happens if I am pulled over for DUI and I have my gun on me?
Cases that involve both a felony gun charge and an OVI are not unusual, but they can be very difficult cases to handle. Even if you are tested and the result is under the legal limit, just the fact that the chemical test was positive for alcohol or drugs of abuse can be enough for a felony indictment.
The Ohio Rules of Criminal Procedure state that any misdemeanor charges arising out of the underlying felony must be bound over, or carry over, to the court where the felony will be litigated. Handling an OVI in felony court can be a difficult task. For staters most felony court personnel such as the judges and prosecutors are not as familiar with all the nuances of OVI law. Specialized legal procedures unique to OVI cases such a administrative license suspension appeals or motions for prior convictions not to enhance the current case will be unfamiliar at best to the judge. Even common procedures such as requesting driving privileges are often met with opposition from both the prosecutors and judges.
It’s not because the court personnel in felony court is universally nastier or tougher, it’s because there is much more of an unfamiliarity with the body of OVI law, and an unfamiliarity of how common and uncommon the range of BAC results can be. For example any chemical test that results in a BAC of over .17 carries a “high tier” designation with stiffer penalties. A high tier OVI test may seem incredulous to a judge who almost never or rarely sees OVIs whereas some municipal court judges might have hundreds of high tier OVI cases on their docket at a given time.
Furthermore, in most municipal courts, driving privileges are almost always given out with no opposition whereas in felony court, most prosecutors will oppose motions for driving privileges because they view them as unnecessary and clients as undeserving of them. Because there is no standardized procedure in place for diving privileges in felony court like there is in municipal court, some judges can take weeks or even months to rule on a motion for driving privileges.
Another challenge with these cases is resolution. Many fifth degree and fourth degree felony cases are eligible for a diversion program in which the client will undertake a series of tasks such as classes and community service and upon completion of the program with no issues the client is eligible to have the whole matter sealed, and they walk out of the court without a felony conviction on their record. It sounds great and it usually is, however OVI cases are ineligible for diversion programs in the State of Ohio.
This is where having a deep knowledge and familiarity of the criminal rules, applicable law, and underlying municipality is of the utmost importance. Sometimes in these cases it is possible to split the the case up and have the OVI recharged in the local municipal court and have the felony stay in place. With some maneuvering, it can be possible to resolve the OVI in a more streamlined and effective manner in the lower court while preserving more remedies in the felony court such as diversion.
Regardless of the facts of the case its is crucial to have a deep understanding of all the ins and outs of what makes a OVI tick. An experienced OVI practitioner can have an advantage when it comes to motion hearings in felony court on OVI cases especially with complicated issues such as blood and urine tests.
Getting served a felony indictment on what most people would think of as just a simple OVI is a tough pill to swallow, but with the right representation and diligence these cases can be handled in an effective and efficient manner.