Old drug charges and buying firearms-NICS

MODS: please move this to the correct forum if necessary. This falls under criminal and federal firearms law.

What is the name of your state? Ohio (where I lie now) and Wyoming (where I got busted)

In 1995, I was convicted of misdemeanor possession of marijuana in Wyoming. I have nothing else on my record. Since then, I have purchased several firearms and went through the NICS background check. Every time, I get the response "Delayed", which means I have to wait 3 business days before I can buy the firearm. I suspect the reason for this is the drug conviction.

Yesterday, I submitted the paperwork to buy a rifle and got the "Delayed" response, as usual. This morning, the dealer calls the NICS to see if there was an update on my file, and the NICS said that the dealer may proceed with the transaction. I pickup up the rifle at the gun show, and as I was walking out, saw another another dealer that had a rifle I wanted to buy, so I submitted the paperwork and the dealer gave NICS my information. Their response was, "Denied".

Naturally, I freaked out and went back to the first dealer to check to make sure the "Proceed" order she got was correct. Upon speaking with NICS, they discovered I should have been denied for that first sale as well. The NICS told the dealer to tell me I had 2 options:

a) I could return the rifle to the dealer, or
b) The ATF would come to my house and confiscate the rifle and quite possibly any other firearms I had on the premises.

I promptly returned the rifle back to the dealer and the dealer informed the NICS that I had surrendered the rifle back to her.

Now, I am worried. Do I stand a chance of getting arrested for attempting to purchase a firearm when I got denied?

Due to the length of time since the drug conviction, can I get it removed from my federal record?

Should I expect a visit from the FBI or the ATF?

I have gone through 2 SEC background checks which involves getting my fingerprints taken and having an FBI background check run on me. The last background check was performed 30 days ago and I saw it...the only thing that shows up is my 1995 drug conviction. I am an SEC-registered financial advisor and I have never been the subject of a restraining order, or domestic violence. I am not a convicted felon, nor have I ever been delcared mentally incompetent, nor have I ever spent time in a mental facility.

I am unsure as to the potential maximum penalty for the drug charge at the time I was convicted since it was 11 years ago. Currently, the maximum sentence is 1 year.

(P39) If a transferee receives a “denied” response from NICS, can the transferee find out why he or she was denied? [Back]

Yes. Although the FFL will not know the reason for the denial, the transferee may contact the FBI or the State point of contact in writing to request the reason for denial.

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from http://www.atf.gov/firearms/faq/faq2.htm#p39

Only the FBI knows why you were denied. Ask them.

Well, here's my main concern:

Am I subject to arrest for attempting to buy a firearm when the NICS denies the transaction?

I'd hate to get mucked up in the federal legal system; I've heard it's 100 times worse than any state legal system. Ugh...

c_hayhurst said:

Well, here's my main concern:

Am I subject to arrest for attempting to buy a firearm when the NICS denies the transaction?

I'd hate to get mucked up in the federal legal system; I've heard it's 100 times worse than any state legal system. Ugh...

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Not to worry, federal prison is 100 times nicer than any state prison. They already know you tried to buy one, plus it is pretty hard to arrest someone over the phone anyway. Seriously, if what you say is true and you only been convicted on a misdemeanor it could be something as simple as they got you mixed up with someone else. It has been a couple of years since I bought a gun but I pretty sure there is a question that asks if you use or addicted to drugs. Maybe that question along with your drug conviction has something to do with it. You won't know until you call and ask. Why don't you pose you question in future tense, " I'm looking to buy a hunting rifle, would my misdemeanor drug conviction prohibit me from doing that?"

gawm said:

Seriously, if what you say is true and you only been convicted on a misdemeanor it could be something as simple as they got you mixed up with someone else. It has been a couple of years since I bought a gun but I pretty sure there is a question that asks if you use or addicted to drugs. Maybe that question along with your drug conviction has something to do with it. You won't know until you call and ask. Why don't you pose you question in future tense, " I'm looking to buy a hunting rifle, would my misdemeanor drug conviction prohibit me from doing that?"

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As far as getting arrested, it seems they would have to get their paperwork in order (i.e., arrest and search warrants) before they come pay me a "visit", so I didn't expect cops to be rushing after me in the parking lot as I was leaving the gun show.

What I do expect, however, is an investigator coming by my house and at the least, doing a knock-and-talk, and at the worst, kicking down my door and arresting me in the middle of the night.

Additionally, one cannot call the NICS to find out why one is denied a firearm; you must send a letter and wait a week or two for a written response.

Lastly, there is nobody to pose any hypothetical question to. You cannot call the NICS ahead of time and ask them to review your file to see if you are okay to purchase a firearm.

And you can't ask a dealer because they are there to sell guns, not help you guess as to whether you'll get approved or not. Besides, they are gun dealers, not NICS Examiners or lawyers, so their opinions mean nothing.

You are right on the drug use question. There is a question that asks if you use or are addicted to drugs or alcohol. It is possible that the Feds consider that a "yes" answer based on my eleven-year-old drug conviction.

You need to check on whether that misd poss of mj keeps you from owning/possessing a firearm.

I would ask the N.R.A., then I would ask ATF, Wyoming cops & Ohio cops for a citation to the exact statute that states you cannot possess firearms. (The NRA is usually the best informed).
It can't be a Federal statute - this isn't true in all states.

I suspect that your charge is being picked up as a felony (no firearms), not a misdemeanor.

c_hayhurst said:

Additionally, one cannot call the NICS to find out why one is denied a firearm; you must send a letter and wait a week or two for a written response.

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Well then, It seems you know what you have to do. Be sure to post back and let us know what the hold up was.

OP: post the citation to the original statute of which you were convicted.

Wyoming State Statute 35-7-1031c.

It can be found here:

http://legisweb.state.wy.us/statutes/statutes.aspx

Select Title 35, Chapter 7, Article 10, then do a word search for 1031 and scroll down to section C.

I also sent a letter to the FBI requesting a reason for the denial and they replied that I may have been identified as one who is prohibited from owning a firearm per Ohio law (where I live), but they do not cite which law may or may not apply to me that would bar me from owning a firearm.

Is there a law in Ohio which prohibits someone form owning a firearm if they have been convicted of a misdemeanor drug possession charge? If so, could someone please quote it? I've spoken with 2 lawyers locally and neither one of them knows anything about such a law. In fact, one lawyer told me that no lawyer in the city of Columbus (where I live) will have any practical experience with such an issue. The local Bar Association didn't help either; they referred me to an estate planning and tax attorney!

Any ideas?

It's Ohio law that is the problem:
Go to http://onlinedocs.andersonpublishing.com/oh/lpExt.dll?f=templates&fn=main-h.htm&cp=PORC

read Ohio Revised Statute 2923.13 ... you are a person 'under disability' due to a drug conviction.
then, go to ORS 2923.14 - how to correct your situation.

BTW, in Wyoming, you would have had to have been convicted of a violent felony or crime against a cop to be refused.
In most states, any felony conviction would preempt gun possession (see also 26 USCA section 1132 re federal). However, you state you were convicted of a misdemeanor.

Check 2923.14 for relief from disability and see if that helps.
PS: you need a criminal attorney on questions re crimes (& guns, most carry).

Thanks!

Thanks a bunch, garrula lingua! That tax/estate lawyer wanted to charge me $175/hour for 2 hours to research what you just told me. You just saved me a good bit of money.

Now, to find a criminal lawyer to ask the government to get my "disability" status removed so I can get my right to own a firearm back. Stupid government...

Isn't she AWESOME!

Well, thank you, gawm; my head is swelling.

Hay, I'd try the local chapter of the NRA and ask if they have a criminal lawyer in their chapter who can help.

Making Progress

I'm going to post a journal of my experiences of getting this little matter cleared up as a case study for all you lawyerly types out there.

Last week I called the NICS hotline (their number was given in the appeal instructions letter after all). The lady I spoke to on the phone was quite pleasant. Here's how they work: they will not specifically tell me over the phone why I was denied, but I could present situations which could result in my denial and they could suggest how one may be able to clear up those situations.

Regarding Ohio state law preventing one convicted of a drug offense from owning a firearm, she did confirm that such a statute exists, but she could not quote the law or when it was put into place. As a remedy, she suggested I have a lawyer from Wyoming request the court which convicted me of the drug offense to expunge my record. If the court agrees to do so, then they will send me an expungement notice. I am supposed to send in the notice along with a fingerprint card and a letter requesting my records to be updated and to appeal the inital firearms transaction denial.

The lady on the phone told me that the reason why the FBI wants a fingerprint card from me is because they require it to provide proof of my identity. She said that there is no other way for me to establish my identity and it is not a negotiable topic. I offered to go to the local FBI office to show them my ID and Social Security Card and she said that would be unacceptable.

She said that if I submit the expungement notice without a completed fingerprint card, the FBI will not process my expungement request.

Can anyone tell me what the hell the FBI needs my fingerprints for if they are just updating my file?

It would seem to me that as long as the expungement notice was verified as legitimatly issued by the court, it doesn't, matter who submits it for my record to be updated.

Another interesting topic came up in my conversation with NICS; since I get my background check done through the NASD and SEC, it is also handled through the NICS. Since this drug conviction also causes me some problems professionally, by getting that conviction expunged, it will not show up in subsequent SEC/NASD background checks.

Yay!

Stupid war on drugs...

When expungement is granted the court (circuit or district) will send all materials in a packet that includes your original fingerprint cards (taken upon arrest) and all case files related to it (police reports) to the states local crime information center who will then update their files and are suppose to forward it on to the NCIC. NCIC honors state issued expungement requests. This service and packet will be included in the fees you pay an attorney to have it expunged.....