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Want to buy a gun, but have a DV

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  • RydnDrty

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    Well back in 2004 me and my GF at the time got into an arguement in Colorado. Well long story short, i was arrested for false imprisonment, harrassment, and telephone obstruction. They dropped all the charges except the telephone obstruction. I did my classes and all theat, and havent gotten more than a speeding ticket since. So basically I would like to but a pistol now, and was wondering if I can. I can't find a definative answer online, so I was hoping that someone of here could help me out. Thanks
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    Texas1911

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    It has to be 5 years since your last date of imprisonment, classes, etc. So if you completed your sentence in say 2005 then you'll have to wait until 2010.

    This is the penal code excerpt:

    (b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
    (1) the date of the person's release from confinement following conviction of the misdemeanor; or
    (2) the date of the person's release from community supervision following conviction of the misdemeanor.
     

    Texas42

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    Texas1911, I don't know, but is there a National DV gun law?

    Is the one you pointed out Texas law? Sorry, I just am getting things straight. Thanks.
     

    JKTex

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    I think the question is about buying in Texas. Just the offenses were in Colorado the way I read it.

    Dumb question. What is DV? I thought Domestic Violence but the conviction was "telephone obstruction".

    I just want to make sure that if I take my daughters mobile phone away, I won't be charged with a crime.
     

    Big country

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    Call or go in to you're local DPS office you may have to set an appointment, but you should be able to find someone there that can help you if that doesn't work call or visit you're local police department. I would think you should be able to get the answers you're looking for that way. Keep us posted.
    And by the way is telephone obstruction a class A, B or C misdemeanor, and what exactly did you do to get charged with it?
     

    txinvestigator

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    Call or go in to you're local DPS office you may have to set an appointment, but you should be able to find someone there that can help you if that doesn't work call or visit you're local police department. I would think you should be able to get the answers you're looking for that way. Keep us posted.
    And by the way is telephone obstruction a class A, B or C misdemeanor, and what exactly did you do to get charged with it?


    He wants to buy a gun, not apply for a CHL. He was convicted in Colorado.
     

    txinvestigator

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    It has to be 5 years since your last date of imprisonment, classes, etc. So if you completed your sentence in say 2005 then you'll have to wait until 2010.

    This is the penal code excerpt:

    (b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
    (1) the date of the person's release from confinement following conviction of the misdemeanor; or
    (2) the date of the person's release from community supervision following conviction of the misdemeanor.

    From section 46.04 of the penal code.

    Section 22.01 is assault. He was not convicted of assault, but of Telephone Obstruction. Even had this occured in Texas he would not be prohibited under that statute.

    Since it was in Colorado he is not prohibited under Texas law from possessing a handgun, unless it was a felony offense.

    From the ATF website;

    Q. MISDEMEANOR CRIME OF DOMESTIC VIOLENCE


    (Q1) What is a “misdemeanor crime of domestic violence”? [Back]
    A “misdemeanor crime of domestic violence” means an offense that:
    1. is a misdemeanor under Federal or State law;
    2. has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
    3. was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
    However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
    1. the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
    2. in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either –
    (a) the case was tried by a jury, or
    (b) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
    In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms

    Q4) X was convicted of misdemeanor assault on October 10, 1996, for beating his wife. Assault has as an element the use of physical force, but is not specifically a domestic violence offense. May X lawfully possess firearms or ammunition? [Back]
    No. X may not legally possess firearms or ammunition.
    [18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]


    (Q5) X was convicted of a misdemeanor crime of domestic violence on September 20, 1996, 10 days before the effective date of the statute. He possesses a firearm on October 10, 2004. Does X lawfully possess the firearm? [Back]
    No. If a person was convicted of a misdemeanor crime of domestic violence at any time, he or she may not lawfully possess firearms or ammunition on or after September 30, 1996.
    [18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]


    (Q6) In determining whether a conviction in a State court is a “conviction” of a misdemeanor crime of domestic violence, does Federal or State law apply? [Back]
    State law applies. Therefore, if the State does not consider the person to be convicted, the person would not have the Federal disability.
    [18 U.S.C. 921(a)(33), 27 CFR 478.11]


    (Q7) What State and local offenses are “misdemeanors” for purposes of 18 U.S.C. 922(d)(9) and (g)(9)? [Back]
    The definition of misdemeanor crime of domestic violence in the GCA includes any offense classified as a “misdemeanor” under Federal or State law. In States that do not classify offenses as misdemeanors, the definition includes any State or local offense punishable by imprisonment for a term of 1 year or less or punishable by a fine. For example, if State A has an offense classified as a “domestic violence misdemeanor” that is punishable by up to 5 years imprisonment, it would be a misdemeanor crime of domestic violence. If State B does not characterize offenses as misdemeanors, but has a domestic violence offense that is punishable by no more than 1 year imprisonment, this offense would be a misdemeanor crime of domestic violence.
    [18 U.S.C. 921(a)(33), 27 CFR 478.11]


    (Q8) Are local criminal ordinances “misdemeanors under State law” for purposes of sections 922(d)(9) and (g)(9)? [Back]
    Yes, assuming a violation of the ordinance meets the definition of “misdemeanor crime of domestic violence” in all other respects.


    (Q9) In order for an offense to qualify as a “misdemeanor crime of domestic violence,” does it have to have as an element the relationship part of the definition (e.g., committed by a spouse, parent, or guardian)? [Back]
    No. The “as an element” language in the definition of “misdemeanor crime of domestic violence” only applies to the use of force provision of the statute and not the relationship provision. However, to be disabling, the offense must have been committed by one of the defined parties
     

    Big country

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    He wants to buy a gun, not apply for a CHL. He was convicted in Colorado.
    I never said he was. I was pointing out that it would be a good reliable source of info straight from the horses mouth. I'm not sure if you are aware but if you have a criminal record you can't buy a gun. that is why we do criminal background checks when we purchase a firearm, so that if you have a criminal record you don't get a firearm.
     

    txinvestigator

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    I never said he was. I was pointing out that it would be a good reliable source of info straight from the horses mouth. I'm not sure if you are aware but if you have a criminal record you can't buy a gun. that is why we do criminal background checks when we purchase a firearm, so that if you have a criminal record you don't get a firearm.

    That is not true. Only if you are convicted of a crime with a potential punushment of over a year are you prohibited under federal law.

    From the ATF;

    (B5) Are there certain persons who cannot legally receive or possess firearms and/or ammunition? [Back]
    Yes, a person who –
    (1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;
    (2) Is a fugitive from justice;
    (3) Is an unlawful user of or addicted to any controlled substance;
    (4) Has been adjudicated as a mental defective or has been committed to a mental institution;
    (5) Is an alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa;
    (6) Has been discharged from the Armed Forces under dishonorable conditions;
    (7) Having been a citizen of the United States, has renounced his or her citizenship;
    (8) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or
    (9) Has been convicted of a misdemeanor crime of domestic violence
    (10) Cannot lawfully receive, possess, ship, or transport a firearm.
    A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding 1 year cannot lawfully receive a firearm.
    Such person may continue to lawfully possess firearms obtained prior to the indictment or information.

    [url]http://www.atf.gov/firearms/faq/faq2.htm#b5[/URL]
     

    Big country

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    I'm also sure you know that different states have different names for different crimes. For example in Texas we have a "failure to render aid" law, and some other states call the same thing "hit and run" or "leaving the scene of a crime". So in order for you to know what advice to give, you would need to know what the actual charge was in Colorado and weather it was a class A,B or C misdemeanor. that is why I advised him to go to DPS to ask the questions. I do not know weather Colorado calls the phone charge a class C or a class A. I'm sure it could researched but you would have to find colorado's laws.
     

    Big country

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    damn that was quick! Any way, that is what I'm saying we don't know specifics of the case. He said that his girlfriend and him got into a fight and the police showed up and took him to jail and then he got charged with phone obstruction. Their is a huge gap their.
     

    txinvestigator

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    I'm also sure you know that different states have different names for different crimes. For example in Texas we have a "failure to render aid" law, and some other states call the same thing "hit and run" or "leaving the scene of a crime". So in order for you to know what advice to give, you would need to know what the actual charge was in Colorado and weather it was a class A,B or C misdemeanor. that is why I advised him to go to DPS to ask the questions. I do not know weather Colorado calls the phone charge a class C or a class A. I'm sure it could researched but you would have to find colorado's laws.

    Colorado may not use the terms Class A, B or C, etc. It does not matter what it is called, what matters is the potential punishment.

    If you will read the Texas law already posted in this thread he is not ineligible under Texas law if he was convicted in Colorado of a crime punishable by less than 1 year. The Texas statute lists a SPECIFIC charge that makes the person ineligible, by penal code section. Since the OP was not convicted in Texas, that law would not apply to him.

    If it was what Texas lists as a felony, then he is ineligible, if not, then he is not prohibited under Texas law. If it is a Domestic Violence conviction as per Federal Law, he is ineligible.
     

    Big country

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    Okay I will be more specific, We don't know weather it is a domestic violence issue or not. Like I said their its a huge hole in the storey line. All I'm trying to say is that we do not know the whole story so we can not form an educated opinion on the the mater I had no intentions of becoming involved in a legal debate as it is apparent that they're are far better lawyers on this site than me.
     

    Big country

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    Well back in 2004 me and my GF at the time got into an arguement in Colorado. Well long story short, i was arrested for false imprisonment, harrassment, and telephone obstruction. They dropped all the charges except the telephone obstruction. I did my classes and all theat, and havent gotten more than a speeding ticket since. So basically I would like to but a pistol now, and was wondering if I can. I can't find a definative answer online, so I was hoping that someone of here could help me out. Thanks
    The OP never makes it clear how long the classes were and if he did any time in conjunction with the classes. now you can sit hear all day talk Texas gun laws and that is fine with me. But the question can not be answered without all the facts and we don't have all the facts that is the only reason I advised him to ask DPS, because they could get the facts from him in person without having to broadcast his personal info, and get a reliable answer from a reliable source, face to face. The "all that" in his description could be 1 year. The fact that he had to take classes could mean it was a domestic violence charge, WE DO NOT KNOW THE WHOLE STORY.
     

    txinvestigator

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    , WE DO NOT KNOW THE WHOLE STORY.

    WHich is why I qualified my statements and gave either/or scenarios.

    If it was a felony in Colorado, he is not eligible under federal law to purchase the handgun, or to even possess one in Texas.

    If it was not a felony, then under Texas law he is not prohibited. If it was not a felony but it IS a domestic violence (per federal law) conviction then federal law makes him inelgible.
     
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